England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday 28th April 2009

1. 1.1. MR JUSTICE HICKINBOTTOM: On 16 May 2007 in the Crown Court at Bradford the applicant, Linda Straughan, was convicted of six counts of fraudulent trading for which she was sentenced the following day to a total of two years' imprisonment.
2. 2.1. The charges arose out of a course of dealing between a number of banks and a series of companies by which the applicant was employed, together with her three co-accused (including Mark Grainger), all of whom pleaded guilty or were convicted on similar charges. As a result of this fraudulent activity the companies obtained nearly £50 million, leaving the banks with losses of £7.5 million.
3. 3.1. On 21 January 2008, at a confiscation hearing, the trial judge, His Honour Judge Durham Hall, assessed the benefit of the applicant and each of her co-accused respectively as the aggregate value of the property obtained by the companies as a result of the fraud, that is £46.7 million-odd, which he proceeded then to apportion between the four defendants, adopting what he called a "pragmatic" approach. He assessed the applicant's share as 7.3% which translated into £3.89 million.
4. 4.1. The realisable assets of the applicant being £125,000, he made a confiscation order against her in that sum to be paid within 12 months with 15 months' imprisonment in default.
5. 5.1. The applicant now seeks to appeal against that confiscation order relying upon a single ground, namely that following Jennings v Crown Prosecution Service [2008] UKHL 29 the approach of the judge in this case -- which in fairness to him was that advocated by the Court of Appeal in Jennings [2005] EWCA Civ 746 -- was wrong. It is submitted on her behalf that, following the approach of the House of Lords in Jennings, on a confiscation hearing in relation to benefit the prosecution must show personal benefit to the particular defendant against whom an order is sought, i.e. the value of the property obtained by him or her, rather than the value of what he or she may have helped others (including any corporate vehicle) to obtain. The applicant, a mere employee of the relevant companies in this case, cannot be regarded as having obtained any part of the payment made to the companies by the banks merely by virtue of her employment, in the absence of evidence of her obtaining as a result of the criminal activity (for example) a salary at a higher than market rate, or a level of expenses or other emoluments higher than employees not engaged in criminal conduct. A similar submission was successfully made to this court on an appeal by the applicant's co-accused against the confiscation order made at the same time against him (R v Grainger [2008] EWCA Crim 2506). In the circumstances, the Crown accepts before us that it cannot properly oppose this appeal.
6. 6.1. For the reasons more fully set out in Grainger, we agree. In the circumstances we extend time so that the applicant is in time - by our calculation an extension of 11 months and 19 days -- and we grant permission to appeal. Given the limited factual basis on which the prosecution presented its case on confiscation and given that this court is not a court of review, we do not have the relevant primary facts upon which we could make any finding with regard to benefit the applicant may have obtained. In the circumstances, as the Crown concedes, the appeal must be allowed and the confiscation order quashed. We make an order in those terms.