| CRIME — Proceeds of crime — Acquiring or possessing criminal property —Calculation of value of defendant’s benefit at material time — Meaning of “market value” of criminal property acquired or possessed — Proceeds of Crime Act 2002, ss 76(7), 79, 80, 329
R v Rose; R v Whitwam [2008] EWCA Crim 239; [2008] WLR (D) 55
CA: Richards LJ, Openshaw J and Judge Stephens QC: 21 February 2008
For the purposes of calculating the benefit to a defendant of his acquisition or possession of criminal property the market value of property obtained by a thief or handler was the amount it would have cost him to obtain the property legitimately, or the economic value to the loser, rather than what the thief or handler could get for the property if he sold it.
In the first case the Court of Appeal, Criminal Division, so held when allowing an appeal by the Crown, under s 31 of the Proceeds of Crime Act 2002, against a confiscation order made by Judge Mitchell at Nottingham Crown Court after the trial of Kevin Rose who was convicted on 2 October 2006 of three counts of possession of criminal property contrary to s 329(1)(c) of the 2002 Act for which he was sentenced to concurrent terms of 30 months’ imprisonment, subsequently reduced on appeal to 12 months’ imprisonment.
The Crown contended that Rose’s benefit from his criminal conduct was in fact £27,272.50 because police had found four items of stolen property at Rose’s property: (1) a Volvo trailer, valued at £9,000, which was restored to its true owner; (ii) the stolen contents of the trailer, namely a quantity of alcohol and soft drinks valued at £6,522.50, which was no longer usable and could not be returned to the brewery which owned it; (iii) a horse trailer, valued at £1,750 which was restored to the company which had insured it but which later went missing; and (iv) a JCB teleporter valued at £10,000 which was restored to its true owner. Judge Mitchell accepted submissions on behalf of Rose that the value of the property restored to its true owners should not be included in the calculation of benefit and accordingly made a confiscation order in the sum of £8,272.50.
In the second case the Court of Appeal refused an application by Gareth Whitwam for leave to appeal against his conviction on 30 March 2007 at Bradford Crown Court, before Mr Recorder Mansell and a jury, of a single count of acquiring criminal property, contrary to s 329(1)(a) of the 2002 Act, for which he was made the subject of a community sentence. A child’s motorcycle was stolen in the course of a burglary and on the same day the applicant was seen in possession of the motorcycle. At his trial the applicant’s defence was that he had bought the motorcycle for £20 from some youths and did not suspect that it was criminal property. The recorder rejected his submission of no case to answer.
It was conceded before the Court of Appeal that the Crown’s written arguments supporting the recorder’s decision were correct and the application for leave was not pursued. The Court of Appeal went on to consider whether it was appropriate in such a case to charge an offence under s 329 but did not find that there was a widespread problem of inappropriate use of s 329, notwithstanding the perception reported by counsel for the applicant.
RICHARDS LJ said, in relation to the Crown’s appeal against Kevin Rose, that it was a case concerning benefit from particular criminal conduct so that by virtue of s 75 and Schedule 2, the criminal lifestyle provisions did not apply. By s 76(7) a person’s benefit was “the value of the property obtained”. It was the meaning and effect of s 79 (headed “Value: the basic rule”) and s 80 (headed “Value of property obtained from conduct”) which were at the heart of the argument . The Crown submitted that the benefit to Rose of the property found in his possession was the economic value of that property to the losers or the amount it would have cost him to obtain the property lawfully, namely the agreed total value of £27,272.50. That followed from the application of the basic rule as to market value in s 79(2). Rose contended that the language of ss 79-80 was clear: by s 80(4) the value of the property obtained by a defendant was to be found in accordance with s 79. It followed that s 79(3) applied, and the effect of s 79(3) was that the value was the market value of the defendant’s interest in the property. In the case of stolen property in the hands of a thief or handler, his interest was no more than a right to possession (a bare possessory title) which had no market value. The Crown further submitted that the provisions had to be construed purposively and in the light of the legislative history and policy. Accordingly, the court considered the earlier statutes in some detail. It had to be recognised that the 2002 Act brought together two separate confiscation regimes relating respectively to drug trafficking and other criminal conduct. However, the provisions of the 2002 Act had to be interpreted on their own terms and considerable care was plainly needed in the use of historical material as an aid to construction of that Act. Their Lordships’ accepted the Crown’s submission that the policy underlying the confiscation regime was Parliament’s desire to strip criminals of their present assets to the extent that they had benefited from past criminal conduct and therefore a purposive approach to interpretation was called for. Accordingly, it was accepted that the “market value” within s 79(2) of property obtained by a thief or a handler was the amount it would have cost the defendant to obtain the property legitimately, or the economic value to the loser, rather than what the defendant could get for the property if he sold it (or, therefore, what he could get for his interest in the property if he sold that interest). On that basis there was no need to consider the nature of the defendant’s interest in the property obtained or the market value of that interest: the focus was on the incoming value of the property, not the value of the property in his hands. The fact that stolen property had been restored to its true owner was irrelevant. The judge’s actual decision in the present case seemed to have been based on what he perceived to be the unfairness of taking into account items that had been recovered and were usable but in their Lordships’ judgment to take such items into account was fully in line with the legislative policy and the decided cases. Accordingly, the judge erred in his approach to the calculation of benefit in Rose’s case. |
