Practice and Procedure


PUBLISHED November 11, 2003

The judge had jurisdiction to make a confiscation order under the Criminal Justice Act 1988 against a defendant who pleaded guilty to charges, inter alia, of possessing goods bearing a sign identical to registered trademarks without the proprietor's consent and with a view to sale or distribution.Appeal against a confiscation order made by HH Judge Bing at Snaresbrook Crown Court on the grounds of lack of jurisdiction and an allegedly flawed finding on the ownership of a property. The appellant ('D') had pleaded guilty to a specimen indictment containing 13 counts alleging breaches of s.92 Trade Marks Act 1994. The majority of the charges were for possession of goods bearing a sign identical to registered trademarks without the proprietor's consent and with a view to sale or distribution. Prior to sentencing, a Newton hearing was held at which it was agreed that the judge should assess the turnover of D's counterfeiting business at ?1 million. The Crown had served a notice under s.71 Criminal Justice Act 1988 giving notice that the court should consider whether it was appropriate to make a confiscation order. The confiscation proceedings were conducted on the basis that all the conditions for the court to have jurisdiction under s.72AA of the 1988 Act had been satisfied. The agreed turnover figure was treated as the "benefit" figure. On appeal D argued that any concession made in the court below went to jurisdiction and he should not be bound by it. He submitted that there were not two qualifying offences for the purposes of s.72AA as all counts in the indictment asserted possession of certain goods "with a view" to making a gain and were therefore not offences from which D obtained any benefit. D's also argued that the judge had wrongly held that D had a 100 per cent interest in a property occupied by himself and his former wife, of which the latter was the registered legal owner but for which D had paid the purchase price. D maintained that the property was a gift to his former wife within the meaning of s.74(10) of the 1988 Act, but it was not caught by that provision because it was purchased prior to the date of the offences.HELD: (1) The fact that D was not charged with having sold or disposed of items that bore a false trademark was not determinative of the appeal. The question was whether the items that bore false trademarks or enabled false trademarks to be applied to goods were "property" and whether they had been obtained in connection with the commission of the relevant offence. (2) The items at issue had been adapted either by application of a false trademark or by their capability to produce false marks and their value was thereby intended to be enhanced. In the majority of the charges, the trademarks were being stolen by D and applied to the items. There was very little distinction between that act and the act of a burglar who took property from a house, which was then immediately seized. In one sense, "with a view to gain" demonstrated that the property bearing the false trademarks had a value of benefit to D. There was therefore no reason why s.71(4) of the 1988 Act should not be construed so as to apply to it. Accordingly the judge did have jurisdiction. There were at least two qualifying offences. The appropriate figure for benefit was £1 million. (3) As to the ownership of the property, the judge correctly directed himself that the true question was whether any genuine gift to the wife had been made and if there was no question of there being a gift then the property was 100 per cent D's and the gift provisions were of no relevance. The finding that D had a 100 per cent interest in the property was open to the judge on the evidence and there was no basis for its reversal.Appeal dismissed.

[2003] EWCA Crim 3110