Practice and Procedure


PUBLISHED March 19, 2003

The Criminal Justice Act 1988 was not concerned with profit and loss accounting so as to enable a defendant to deduct the expenses of committing a criminal transaction from the receipts of a crime.Application by the defendant ('R') for leave to appeal against sentence limited to the quantum of a confiscation order in the sum of ?25,611 imposed as part of a sentence for offences under the Trade Descriptions Act 1968 and the Forgery and Counterfeiting Act 1981. Between 1997 and 1999 R had operated as a fraudulent secondhand car dealer. On over thirty occasions he had bought second hand motor cars that he dishonestly "clocked" and then sold to unsuspecting members of the public. He had been convicted by a jury on an indictment that had related to the clocking of 16 cars. An earlier document had alleged that he had clocked 30 cars and the confiscation proceedings had been based on this larger number. Section 71 Criminal Justice Act 1988 triggered the procedure in relation to the 16 cars but the Crown had served a further application under s.72AA(4) for the confiscation order to relate to the sale of 33 cars. As a method of calculation the judge had accepted the Crown's submission that one had to apply the Glass's Guide to establish the increase in value of each motor car that had been attributable to each 1000 mile reduction reading. That could be done by reference to tables which gave the trade process of most market makes, models and years of motor cars. R had therefore acquired by way of benefit that increased value which could be determined simply by the subtraction of one figure from another. R had submitted that: (i) the judge's ruling had been incorrect; (ii) the judge ought to have assessed the benefit as being the difference between the actual price for which the car was sold and the real value of the car, that was, the value of the vehicle from Glass's Guide by reference to it's real mileage; (iii) The court ought to have been concerned with computing the actual benefit obtained from the criminal activity; and (iv) the method adopted by the judge had assumed that which was not necessarily true, ie that a clocked car would have been sold at a price that reflected the clocked mileage.HELD: (1) The application of s.71(4) would have resulted in gross proceeds of sales of the clocked car's being identified as the property obtained as a result of clocking and thus as the benefit for confiscation purposes. (2) It was true that a court in making an assessment of benefit as demanded by s.71(4) had to "stand back" in considering whether the prescribed method risked injustice. (3) However, the method adopted by the judge had not threatened injustice so as to demand the application of a method more favourable to R. (4) Clocking might not simply reflect an enhancement of ostensible value, it could enable the sale of that which would not otherwise have been sold. (5) R's commitment to clocking and to concealing such suggested that the practice had become fundamental to his turnover so that the benefit for confiscation purposes could aptly be assessed by reference to the gross proceeds of the sale of such cars as had been clocked.Application dismissed.

[2003] EWCA (Crim) 698