England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		13 July 2007

LORD JUSTICE LEVESON: I will ask Mr Justice Elias to give the judgment of the court.

MR JUSTICE ELIAS:

Introduction

1. On 12 November 2004, at the Crown Court at Birmingham, before His Honour Judge Ross, the appellant appeared together with her husband Clive Neuberg. He was charged with taking part in the management of Watergate Services Limited when an undischarged bankrupt. The appellant was jointly indicted with aiding and abetting that offence. He pleaded guilty; she pleaded not guilty. On a second count the appellant was charged with trading under a prohibited style, namely Neuberg Metal Spinners, without the leave of the court, between 19 November 2001 and 14 June 2002, contrary to the Insolvency Act 1986. Her husband was jointly indicted with aiding and abetting that offence. She pleaded guilty; he pleaded not guilty. The pleas were accepted by the prosecution.

The Background

2. The background can be briefly stated. The offences stem from the running of a long-established business which had been in Mr Neuberg's family for some generations. The business produced light metal products. It had traded as Neuberg Metal Spinners for many years. In recent years Clive Neuberg had used various limited companies as vehicles to continue his trading. However, Neuberg Metal Spinners Limited went into liquidation in 1998. Another limited company, Watergate Services Limited, was incorporated on 16 September 1997. The applicant was the sole director and, from 20 May 1998, the company secretary. Her husband was said to be the driving force behind the company. It continued to trade under the style of Neuberg Metal Spinners.
3. On 21 July 2000, Clive Neuberg was adjudged bankrupt. Watergate Services Limited continued to manufacture until about December 2000 and to dispose of stock up until February 2001. He remained actively involved in directing its operations after his bankruptcy, hence his conviction. It had ceased trading by March 2001. It was wound up on 19 November 2001. It was only after that date that it became unlawful to trade under the name Neuberg Metal Spinners.
4. In about January 2001, the applicant began to trade as Karen Neuberg trading as Neuberg Metal Spinners. She was registered for VAT from 1 January of that year. She traded lawfully, using that name, until Watergate went into liquidation on 19 November. Thereafter, she continued to use the prohibited style until 14 June 2002, even after having been warned not to do so. It was common ground that the turnover in respect of the unlawful period of trading was £288,948.
5. On 28 January 2005, the appellant was sentenced to a Community Punishment Order of 80 hours and disqualified from holding a directorship for five years. She does not appeal against that part of the sentence.
6. A determination of the confiscation proceedings under the Criminal Justice Act 1988 was postponed. Two issues fell to be decided in those proceedings:

(1) Did the applicant obtain a benefit from the commission of the offence?

(2) If so, was the benefit to be calculated on the basis of the gross turnover of the business or the net profit?

The judge found that there was a benefit which should be calculated by reference to the turnover for the relevant period. However, he appreciated that since the appellant did not have the assets to pay that sum, the relevant realisable asset, which was the subject of the order, was £100,000. That order is now the subject of this appeal.

The Hearing before the Judge

7. Counsel for the Crown, Mr Davis, submitted before the judge that there was a benefit directly linked to the commission of the offence. Since the business traded unlawfully, using the prohibited name to generate business, the benefit must be the gross income or turnover of the business for the period specified in the count on the indictment. This was the period during which the name was unlawfully used.
8. Mr Hotten QC, who appeared both before the judge and before us on behalf of the appellant, submitted that there was no benefit. The appellant did not trade unlawfully. She was carrying on a wholly lawful business, and the identity of the business was merely an incidental part of that activity. The confiscation provisions were, therefore, not engaged. Moreover, he submitted that even if they were, the proper basis of assessment was for the judge to determine the net profit after taking into account the expenditure involved and not the gross turnover. Any other basis, it was submitted, would be unjust.
9. The judge reviewed a number of authorities, some of which we refer to later in this judgment. He concluded that the Crown were correct. The judge held that it was a lawful business which was carried on through an unlawful vehicle. He said this:

"The name Neuberg Metal Spinners was much more than a bolt-on addition, a convenient but non-harmful badge. The name Neuberg Metal Spinners was fundamental to the business in two respects. First, it sent out a message to the world at large, and in particular to suppliers and customers, that nothing had changed in relation to the company structure and trading nature. There was no need for anyone, in particular 'suppliers' to be concerned. it would raise no questions in anyone's mind. It was business as usual. Second, the name Neuberg Metal Spinners was fundamental to the company's business identity, and fundamental to the generation of business by virtue of the company's history. Mrs Neuberg, I find, knew this and for these reasons traded through this company's unlawful name."

Accordingly, the judge concluded that there was a benefit which continued throughout the duration of the unlawful trading. He then turned to consider the basis upon which the benefit should be calculated. In the light of the authorities, to which we will return, he concluded that it should be the turnover and not simply the net profit. He observed:

"Without the carrying on of the lawful business through an unlawful business vehicle, I find it highly probable that business would have collapsed. It is my view therefore that no injustice is done in saying the turnover, rather than the net profit, is the appropriate approach to the calculation of the benefit in this case."

10. It was in the light of that ruling that the parties agreed the turnover figure of £288,948. They also agreed that the realisable assets were smaller and amounted to £100,000. Accordingly, the judge made a Confiscation Order in that sum.
11. The case came before this court on 19 March 2007, following a refusal of leave to appeal by the single judge. The court granted leave. They allowed all three grounds of appeal to be argued, but indicated that the principal ground which they considered merited leave was the third.
12. The three grounds are these. First, Mr Hotten reiterates the two arguments that were run and lost before the judge. He submits that the judge erred in concluding that the appellant had gained any benefit at all from the use of the prohibited name; and second, that in any event the calculation of the benefit by reference to the gross turnover was unjust and failed to give credit for the expenditure involved in running the business. The third ground was not originally identified in the grounds of appeal. It is submitted that there is a broad-ranging discretion which obliges a sentencing judge, having applied the specific principles set out in the legislation, to stand back and consider whether it is in the interests of justice to impose an obligation to pay the sum which is the subject of the Confiscation Order. If there is a significant risk of injustice, then it is submitted that the Order should be modified accordingly.
13. The foundation of this argument is that section 3 of the Human Rights Act 1998 requires domestic statutes to be read compatibly with community law. It is said that Article 1 of the First Protocol requires that in appropriate circumstances any interference with the property rights identified in that Article must be proportionate.

The Statutory Provisions

14. We first set out the statutory provisions. The relevant offence was committed in 2001-2002 and therefore the confiscation provisions in play were those contained in the Criminal Justice Act 1988, as amended by the Proceeds of Crime Act 1995. There was a similar, albeit not identical, set of provisions found in the Drug Trafficking Act 1994 for drug trafficking offences. These different regimes have been brought together under Part 2 of the Proceeds of Crime Act 2002, but only for offences taking place after 24 March 2003. Accordingly we are dealing in this case with now repealed legislation, but many of the principles applicable under the repealed Acts remain equally applicable under the 2002 Act.
15. Section 71(1) of the Act states:

"Where an offender is convicted in any proceedings before the Crown Court of an offence of a relevant description, it shall be the duty of the court --

(a) if the prosecutor has given written notice to the court that he considers that it would be appropriate for the court to proceed under this section, or

(b) if the court considers, even though it has not been given such notice, that it would be appropriate for it so to proceed,

to act as follows before sentencing or otherwise dealing with the offender in respect of that offence or any other relevant criminal conduct.

(1A) The court shall first determine whether the offender has benefited from any relevant criminal conduct.

(1B) Subject to subsection (1C) below, if the court determines that the offender has benefited from any relevant criminal conduct, it shall then --

(a) determine in accordance with subsection (6) below that the amount to be recovered in his case by virtue of this section, and

(b) make an order under this section ordering the offender to pay that amount."

We pause to note that there is no dispute that the criminal conduct here is relevant criminal conduct within the meaning of subsection (1B).

16. Section 71(4) is central to this appeal. It provides:

"For the purposes of this Part of this Act a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained."

Subsection (5) then provides a similar provision for those who obtain a pecuniary advantage as a consequence of their criminal conduct. Subsection (6) indicates that it will not always be appropriate for the Order to relate to the benefit which has been obtained. It provides:

"Subject to subsection (1C) above the sum which an order made by a court under this section requires an offender to pay shall be equal to --

(a) the benefit in respect of which it is made; or

(b) the amount appearing to the court to be the amount that might be realised at the time the order is made,

whichever is the less."

It was on the basis of that provision that the order made against the appellant was in the sum of £100,000 rather than the full value of the turnover gain.

The Authorities

17. We have been referred to an extensive number of authorities in relation to this appeal. It is unnecessary to trawl through all of them because we consider that the principles are clearly established as follows:

(1) As Lord Steyn observed in R v Rezvi [2003] 1 AC 1099, at paragraph 14:

"The provisions of the 1988 Act are aimed at depriving such [habitual] offenders of the proceeds of their criminal conduct. Its purposes are to punish convicted offenders, to deter the commission of further offences and to reduce the profits available to fund further criminal enterprises."

Those observations were made with respect to habitual offenders, bun in our view any confiscation order has the same broad purposes. The purposes of the Act are therefore penal and, as Lord Rodger noted in R v Smith [2001] UKHL 68, at paragraph 23, it can in some circumstances operate in a draconian manner.

(2) Section 71 makes it plain that the court has a statutory duty to carry out a confiscation inquiry, either if it is requested by the prosecution or if it considers that it would be appropriate so to do. Thereafter, once the inquiry is under way, it has a duty to determine whether a benefit has been obtained and, if so, to evaluate it. It is then obliged to make a Confiscation Order for that sum to be paid, unless the realisable assets fall below the value of the benefit, in which case the Order must be to pay the realisable assets.

(3) The way in which the court gives effect to section 71(4) is to ask two questions. The first is whether a benefit has been obtained as a result of or in connection with the commission of the crime. If it has not, that is the end of the inquiry. If it has, then the second question is: what is the value of that benefit?

(4) In determining the first question, the test is whether the offender's criminal acts have been a cause (in the sense of having materially contributed to) of obtaining the property. Whether the property has been retained is irrelevant.

(5) In determining the value of any benefit, the court is not limited to considering the extent to which the offender personally benefited; nor is the concept of benefit to be equated with profit. It is the value of the property obtained, irrespective of the cost of obtaining it.

(6) A judge's findings on the two questions which arise out of section 71(4) are findings of fact. He has a wide discretion when applying these principles. His order will stand if he has a proper evidential basis for it and he has not misdirected himself.

18. We refer to some authorities to make good principles (4) to (6). First, as to principle (4), in Jennings v Crown Prosecution Service [2005] EWCA Civ 746, this court was concerned with the imposition of a Restraint Order imposed pursuant to section 77 of the 1988 Act. However, in the course of considering that issue, the court had cause to consider the scope of section 71(4). In his judgment Laws LJ said:

"38. What remains to be said about the meaning of the word 'obtain' in section 71(4)? Clearly it does not mean 'retain' or 'keep'. But no less clearly, in my judgment, it contemplates that the defendant in question should have been instrumental in getting the property out of the crime. His acts must have been a cause of that being done. Not necessarily the only cause: there may, plainly, be other actors playing their parts. All that is required is that the defendant's acts should have contributed to a non-trivial (that is, not de minimis) extent, to the getting of the property. This is no more than an instance of the common law's conventional approach to questions of causation."

Laws LJ then observed that there was no separate requirement that the defendant should be shown to have control over the property. He said:

"40. .... The issue in every case is whether the defendant has obtained property by his crime: it means, as I have indicated, whether his acts have materially contributed to the getting of it."

19. In R v Currey (1995) Cr App R(S) 421, the appellant was convicted of conspiring to publish obscene articles and being knowing concerned in the importation of obscene articles. He was subject to a Confiscation Order under the 1988 Act in the amount of £75,000. It was submitted that the appellant had not personally benefited by the money because it went through the hands of a business rather than into his hands personally. Moreover, it was his contention that the purpose of the statute was only to milk the offender of any profits which he has not only obtained but has actually retained. Once he had spent them, they were no longer capable of being the subject of a Confiscation Order. In that case the sum so retained amounted to only £16,000. The court rejected this submission in somewhat peremptory fashion. At page 425 Lord Taylor CJ said this:

"In our judgment, this is entirely to misconceive the court's power and the proper criteria for making confiscation orders. As is stated by the authors of Archbold at paragraph 5-71 of the 1994 edition:

'.... if the offender has benefited from the relevant offences to a particular amount, and spent that money before appearing before the court, the court may make a confiscation order based on the value of other assets which he holds, even though those have come into his possession lawfully.'"

20. As to principle (5), we refer briefly to three authorities. First, in Jennings (cited above) the Crown contended that the benefit referred to in section 71(4) was whatever the criminal conduct had generated. The appellant contended that it was limited to what he had personally obtained and kept for himself. Laws LJ noted that the concept of "benefit" in section 71(4) had been the subject of a good deal of authority. He considered the various authorities, including R v Patel [2002] Cr App R(S) 10, R v May [2005] EWCA Crime 97, R v Gokal (CACD, unreported, 11 March 1999), R v Olubitan [2004] Cr App R(S) 14, and R v McKechnie and Others [2002] EWCA Crim 3161, [2003] 2 Cr App R(S) 33. After a careful analysis of each of those decisions, Laws LJ held that they supported the Crown's argument. He thought that the only judgment which might support the proposition advanced by the defendant, when carefully analysed, was Gokal; but he concluded that it was out of line with the other authorities. The court held that "benefit" refers to whatever the defendant's alleged criminal has generated or delivered. Laws LJ therefore rejected the defendant's submission that the concept of benefit was restricted to such property as the defendant obtained for himself or for his family. He observed:

"36. It is in my judgment plain that the essence of what is meant by 'benefit' in section 71(4) is given by the verb 'obtain'. And whether in any given case a person has obtained any particular property must involve issues of fact."

21. It is also clearly established that there is nothing in the section that requires or entitles the court to have regard to the amount of profit, as opposed to the value of the property. The point was put unequivocally by May LJ in R v Priestley [2004] EWCA Crime 2237, when he said:

"21. By section 71(4) a person's benefit, if he obtains property as a result of or in connection with committing an offence, is the value of the property so obtained. This means that the court is concerned with the gross value of property obtained and is not concerned, for instance, to deduct the cost of obtaining it."

Mr Hotten contended that that was a case where the whole activity was unlawful and therefore was different from the circumstances here. That may be so, but May LJ in our judgment simply stated as a general principle how the legislation should be construed. A similar approach was adopted by Lord Rodger in Smith [2001] UKHL 68: see paragraph 23.

22. Mr Hotten submits that other cases show a different approach. He referred to May (cited above) and Attorney General's Reference No 25 of 2001 (R v Moran) [2001] EWCA Crime 1770. These were cases which involved defendants who obtained a pecuniary advantage within the meaning of subsection (5); they were not concerned with the construction of benefit under subsection (4). In each case there had been a defrauding of the Revenue. In each case the pecuniary advantage was found to be the unpaid tax, together with interest. In our judgment they are not inconsistent with the principle we have enunciated. In those cases the illegal activity did not contribute to the generation of the turnover. It would have been inappropriate to have calculated the advantage by reference to turnover.
23. Next, Mr Hotten referred to R v Foggon [2003] EWCA Crime 270, where the court considered that it was arguable that a benefit obtained within the meaning of section 71(4) would only be such benefit as was appropriated by the defendant for his own use. The court there merely raised the question, and a number of subsequent cases have answered it, and answered it decisively in a way which is inconsistent with the arguments advanced here.
24. In McKechnie (cited above), the court considered that the benefits obtained by a number of conspirators might be determined by dividing the total benefit by the number of parties involved. However, that case was carefully considered in Jennings by Laws LJ, who distinguished it and we need say no more about it.
25. In R v McKinnon [2004] EWCA Crime 395, where a concession had been made that, in calculating the benefit, the payment made to the Inland Revenue should be deducted as an expense, the court was faced solely with a concession. That case is therefore no authority for anything.
26. Finally, as to principle (5), it is a general principle that this court will only review discretions of the kind exercised by the judge here where there is a plain error of law or an absence of evidence to justify his decision. An example in the context of these provisions is Currey (cited above), where the court held that the judge was entitled to take the view that the appellant, who was involved in unlawful pornography, was a major participant in the unlawful trade. He had obtained a significant benefit within the meaning of section 71(4), notwithstanding that it had been received by his company. At page 425 of the report, Lord Taylor CJ said:

"In order to overturn the learned judge's order, which was a discretionary order, [counsel] would have to persuade this court that the learned judge had acted in a way which was Wednesbury unreasonable, ie that no judge knowing all the facts of the mater could reasonably have come to the conclusion that he did."

Applying the Principles

27. We turn to apply these principles to the facts here. As to the first ground of appeal, in our judgment there is no basis for saying that the judge was not entitled to conclude that the appellant had obtained a benefit within the meaning of section 71(4). He found as a fact that her use of the prohibited name had enabled her successfully to trade, when otherwise she would not have been able to do so. Mr Hotten says that the judge acted on the basis of a misapprehension; he had not appreciated that she had traded in her own name for some months before she began to use the unlawful name as a vehicle for her trading. We doubt that the judge did make that error; but even if he did, in our view it takes the appellant nowhere. It is plain that the purpose of using the name was to benefit from the goodwill attached to it. The appellant had been told on a number of occasions not to use the name and continued to do so. She plainly must have recognised that there was objectively a benefit to her in so doing. It is true that she would no doubt have had some turnover even if she had used a different vehicle for her business. But that does not assist the appellant. The use of the illegal name was one of the causes of the benefits obtained by her. In our judgment the judge was entitled to take the view that it had that effect. Indeed, we consider that it would have been difficult for him to conclude otherwise.
28. The second ground of appeal can be dealt with shortly. When calculating the benefit, for reasons we have given, the judge was right to look at turnover and not simply to limit the benefit to profits. We have analysed the authorities with regard to that. They establish a clear principle which the judge applied appropriately.
29. The third ground of appeal needs to be considered in a little more detail. It was originally advanced before this court on the leave application that in Rezvi there were observations by Lord Steyn at paragraph 15 to the effect that, once the calculation of the appropriate sum had been made, the court had to stand back and ask itself whether there might be a serious risk of injustice if a confiscation order in that amount were to be made.
30. Mr Hotten realistically accepts that this is not what Lord Steyn was suggesting. In Rezvi their Lordships were concerned with the question of whether certain assumptions in section 72AA of the 1988 Act were compatible with either Article 6 or Article 1 of the First Protocol. Their Lordships held that they were not incompatible. Those assumptions were applicable in circumstances where there is a course of criminal conduct and the assumptions entitle a court in an appropriate case to determine which property is deemed to have been obtained from criminal activity. Section 72AA(5) specifically provides that an assumption should not be made if there would be a serious risk of injustice in an offender's case if it were made. It is only in that context that Lord Steyn said that there was an obligation to consider whether there was a risk of injustice. In other words, a consideration of the assumptions under section 72AA does not impose a general obligation on the court to review the sum which emerges and to apply the calculations required with respect to section 71(4).
31. We were also referred to an observation in R v Raphael [2003] EWCA (Crime) 698, where the court said:

"10. .... It is true that a court making an assessment of benefit as demanded by section 71(4) must conclude by 'standing back' and considering whether the prescribed method risks injustice: see R v Rezvi ...."

That is, with respect to the court, a misunderstanding of what Lord Steyn said, as a careful analysis of his judgment in Rezvi clearly establishes and as Mr Hotten accepts. Consequently, no weight can be placed on that observation.

32. Mr Hotten now focuses his argument differently. It is based on Article 1 of the First Protocol, which is in the following terms:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

Mr Hotten accepts that that article plainly envisages that the state is entitled to impose penalties and that these will not of themselves involve the breach of the right to peaceful enjoyment of possessions. But he contends that it is an overriding principle of Convention law that any interference with the rights must be proportionate. Accordingly, any penalty must be a proportionate interference with the peaceful enjoyment of these possessions.

33. Mr Hotten further relies upon an observation of this court in May (cited above). That was a case where monies had been received into a business which had been jointly controlled by a number of defendants. It was held, in accordance with authority, that it was appropriate for the court to conclude that each defendant individually should be treated as having obtained the total sum received by the company. However, the court left open the possibility that in some circumstances this approach could involve a breach of Convention rights. It said:

"40. It is not necessarily any more unjust for the whole of that property jointly controlled to be treated as the individual defendant's benefit than for money which has passed through a defendant's hands to be treated as his benefit, even though that money is a much greater amount than his personal profit. Yet the applicants accepted that the latter situation is well-established by the authorities. It was contended that there may be circumstances in which making an order in the full amount against several defendants would be disproportionate and contrary to Article 1 of the First Protocol to the European Convention on Human Rights. Mr Owen [counsel for one of the appellants] accepted that the confiscation regime pursues a legitimate public interest as required by that Article, namely to punish offenders and to remove criminal assets from circulation. But he argued that proportionality requires that the interference with property rights should be no greater than is necessary to achieve those aims.

41. We see force in that point as a general proposition, and in some circumstances it may lead the court to adopt an apportionment approach. For example, there may be cases where the defendants have substantial assets, with the result that making orders for the full benefit in each case would lead to the Revenue recovering far more than the conspiracy or joint enterprise had obtained. In such a case the court may be prepared to apportion the benefit. But that situation does not apply here."

The observations there made were also referred to in Jennings at paragraph 41.

34. Mr Hotten also relies upon McKechnie, in which the court considered that it might be an appropriate starting point to divide the benefit by the number of those who had been involved in the unlawful activity. He suggests (but without any foundation for the suggestion) that the court there may have applied Convention jurisprudence.
35. In our opinion May is very different to the situation here, as Mr Hotten accepts. It raised the possibility (and no more) that it may be unjust to recover from each and every individual the full amount of criminal gain from a particular criminal activity, even if they played only a small part in it. It seems to us that it is very doubtful whether the principle would have any application in a case of this kind. The structure of the legislation is such that the Confiscation Order will ultimately be limited to the realisable assets of the defendant. It seems to us that that of itself requires a proportional response. Moreover (although admittedly in a different context) the House of Lords in Rezvi held that the assumptions were not incompatible with this provision and yet in some ways they have a more draconian effect than section 71(4) is likely to have.
36. It is also difficult to see how the principle would be applied. Indeed, at one stage Mr Hotten came close to suggesting that the principle here is akin to that of a fine, namely that the Confiscation Order should reflect the degree of criminality. However, it is plain from the legislation and the decisions to which we have made reference that the orders will sometimes have a more draconian effect than that. They are meant to discourage and deter those who might otherwise involve themselves in criminal activity from so doing. They may in some cases cause an injustice and may impose a harsh penalty. We therefore doubt whether there is a residual principle of this nature. We note that in R v Jones [2006] EWCA Crim 2061, in a judgment given by the Vice President, Latham LJ, the court held that, under the similar provisions in the Proceeds of Crime Act 2002, there was no general discretion given to a judge to make an order in the sum calculated by reference to the statutory provisions merely because it would cause hardship to an individual defendant. We would add that, even if there is a residual discretion of the kind relied upon by Mr Hotten, it seems to us that it would apply only in the most exceptional cases. We do not think that the facts of this case would begin to come within such a principle even if it does exist.
37. For all of these reasons the appeal fails in respect of each of the grounds and it is dismissed.
38. MR DAVIS: My Lord, I have indicated to my learned friend that there is no ancillary application sought by the Crown in respect of costs. But, my Lord, this judgment is important to the Department of Trade and Industry for whom I prosecute today. There are a number of cases which are dependent upon it and I wonder if your Lordship would order that the transcript be expedited?
39. LORD JUSTICE LEVESON: Yes.

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