Proceeds of Crime Act 2002, section 76

Conduct and benefit

Part 2 Confiscation: England and Wales

(1)Criminal conduct is conduct which—

(a)constitutes an offence in England and Wales, or

(b)would constitute such an offence if it occurred in England and Wales.

(2)General criminal conduct of the defendant is all his criminal conduct, and it is immaterial—

(a)whether conduct occurred before or after the passing of this Act;

(b)whether property constituting a benefit from conduct was obtained before or after the passing of this Act.

(3)Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs—

(a)conduct which constitutes the offence or offences concerned;

(b)conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned;

(c)conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned.

(4)A person benefits from conduct if he obtains property as a result of or in connection with the conduct.

(5)If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.

(6)References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and some other.

(7)If a person benefits from conduct his benefit is the value of the property obtained.

Definitions used in section 76 1

the court

(10) In this section, sections 120 to 140 and Schedule 3 “the court” means—

(a)the Court of Session, where a trial diet or a diet fixed for the purposes of section 76 of the Procedure Act in proceedings for the offence or offences concerned is to be, is being or has been held in the High Court of Justiciary;

(b)the sheriff exercising his civil jurisdiction, where a diet referred to in paragraph (a) is to be, is being or has been held in the sheriff court.

Defined in s.119(10) · see it in the full Act

Cases considering section 76 97

R v Ahmad and another

[2014] UKSC 36 · 18 June 2014Interprets

The provision participates in the valuation regime under which the relevant benefit is valued by reference to original or current value. (see para [6]) A person benefits if that person obtains property through or in connection with the conduct. Obtaining means assuming an owner’s rights, and offenders may obtain property together without acquiring legal title. (see paras [30]; [41]-[52]) The provision measures benefit by the value of the property obtained. Where a defendant obtained the whole property together with others, the benefit is the market value of the whole. (see paras [30]; [60]-[70])

R v Waya

[2012] UKSC 51 · 14 November 2012Interprets

Section 76(4) requires identification of property obtained as a result of or in connection with criminal conduct. In this mortgage transaction, the majority held that the appellant obtained a chose in action rather than the loan advance or the whole flat. (see paras [43]-[53]) The court noted, without deciding, that a pecuniary advantage is deemed to be a sum of money. It doubted whether the tracing provisions necessarily apply to an advantage that is not property. (see para [54]) Section 76(6) confirms that property obtained in connection with criminal conduct may also have another connection. It was part of the statutory text considered in identifying benefit. (see para [9]) A defendant’s benefit is the value of property obtained. The court applied this provision after determining what property the mortgage fraud had produced. (see paras [43]; [78]-[81])

R v Islam (Respondent) (on appeal from the Court of Appeal Criminal Division)

[2009] UKHL 30 · 10 June 2009

A person benefits from conduct when property is obtained as a result of or in connection with that conduct. The respondent obtained the heroin upon importation. (see paras [23]; [29]) A person’s benefit is the value of the property obtained. The provision required valuation of the imported heroin despite its later seizure. (see paras [23]; [29])

77 more judgments, and what each says about section 76, are in the case-law panel in the full Act.

Explanatory note

139.Section 76 defines criminal conduct as any conduct constituting an offence in England and Wales or which (if it took place elsewhere in the United Kingdom or abroad) would constitute an offence there. The restriction of the scope of confiscation under earlier confiscation legislation to the proceeds of drug trafficking, other indictable offences and specified summary offences is thus abolished. Under the Act, the Crown Court that makes a confiscation order will only need to consider whether the defendant has benefited from any conduct which is, or would be contrary to the criminal law of England and Wales. Section 76 also defines “general criminal conduct” and “particular criminal conduct”. For the significance of these terms see the note on section 6.

140.Section 76 also provides that a person benefits from criminal conduct if he obtains property as a result of or in connection with the conduct. This unites in one new provision two similar but not identical definitions in the earlier confiscation legislation relating to drug trafficking, and that relating to other offences. Under the earlier drug trafficking legislation a person benefits from drug trafficking if he receives any payment or reward in connection with drug trafficking carried on by him or another person. Under the earlier legislation relating to other offences, a person benefits from an offence if he obtains any property as a result of or in connection with its commission.

All the explanatory notes for the Act

Amendments and notes

1 notes from legislation.gov.uk

Commencement

  1. I66S. 76 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with art. 9)