Clark & Anor, R. v [2011] EWCA Crim 15

[2011] EWCA Crim 15Case No 200903164/3808D4IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LUTON
HIS HONOUR JUDGE FOSTER
T20067127
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/01/2011
Before
LORD JUSTICE RIXMR JUSTICE HEDLEYMR JUSTICE OPENSHAW
Between
RRespondent(1) MARTIN CLARKAppellant(2) RAYMOND SEVERNApplicant
Mark Wyeth QC (instructed by CPS Hertfordshire) for RespondentAndrew Bodnar (instructed by LMJ Solicitors) for Appellant, Martin ClarkHearing Hearing dates : Monday 8 th November 2010
Judgment
[1]This appeal concerns the question of benefit derived by the appellant Martin Clark from his participation in a conspiracy to handle stolen cars. The issue arises out of confiscation proceedings which followed his conviction. His application for leave to appeal was refused by the single judge, but we granted leave. There is also a renewed application by his co-defendant, Raymond Severn, which we will deal with below.[2]Clark and Severn were convicted on 28 June 2007 in the Crown Court at Luton before HH Judge Foster and a jury of conspiracy to handle stolen cars. On 13 September 2007 Judge Foster sentenced Clark to 7 years imprisonment and Severn to 6½ years imprisonment. On 23 October 2008 Clark’s sentence was reduced to 6½ years on appeal, but both Clark and Severn lost their appeals against conviction.[3]The essence of the case against Clark and Severn was that they were involved in a conspiracy to handle high-value prestige motor-cars which had been stolen from their owners either by “car-jackings” or in the course of burglaries. The conspiracy lasted from August to November 2005. Some 92 cars in all were stolen, but the confiscation proceedings concerned 54 out of that number, with a retail value of over £3 million. There were many co-defendants, whose sentences ranged from 8 years downwards. The role of Clark and Severn was to assist in the shipment of the cars to East Africa. They owned a business known as EazyStore Ltd which provided storage and shipping facilities. The cars were stowed in containers at EazyStore’s premises. EazyStore rented the containers to those who were concerned to ship the cars out of the country. Thus EazyStore was what the judge described as the principal link with the shipping agent who made the shipping arrangements through the port of Felixstowe and supplied the false documentation for export. Clark was the organiser and facilitator of the containerisation operation, and Severn arranged for the haulage of the containers to the port.[4]Following their appeals, Judge Foster proceeded to deal with confiscation order proceedings. On 16 December 2008 he imposed a confiscation order on Severn in the sum of £85,000 to be paid within 6 months with 21 months’ imprisonment in default. Severn compromised those proceedings by agreement with the prosecution, on the basis that his benefit amounted to £1.5 million and his available assets to £85,000. The prosecution had originally relied on the benefit figure of £3 million, but agreed the figure of £1.5 million on the basis that that represented the value which the owners would have obtained for their cars at the relevant time or the cost of acquiring those cars legitimately. The judge approved the settlement.[5]Clark’s available assets were much greater than Severn’s however, and his confiscation proceedings were more protracted. In the event the judge found his available assets to be £769,768.90. The benefit figure relied on by the prosecution in his case was now said to be £1.8 million, but the judge considered that if they had agreed £1.5 million as the relevant figure in the case of Severn, that was the figure which he would adopt as the value of the 54 cars. He therefore made a confiscation order in the case of Clark in the sum of £769,768.90 to be paid within 6 months with 4 years’ imprisonment in default. That was on 19 June 2009.[6]Clark did not assist himself in the matter of his confiscation proceedings by parting company with his legal representatives. The judge gave careful consideration to these circumstances at the outset of his ruling, to reflect any concern which may have been expressed at the hearing about the fairness of the proceedings. Suffice to say, the judge took pains to assist Clark to obtain representation, inter alia by adjourning the proceedings, but his ultimate conclusion was that the situation was of Clark’s own making. There is no surviving ground of appeal based on article 6 or the fairness of the proceedings. However, we mention Clark’s lack of legal representation, because it explains why the judge was unable to receive all the assistance which he might have obtained from a professionally contested hearing.[7]There was much debate in the proceedings and at the hearing as to the value of Clark’s available assets, but all those points no longer concern us. The sole ground of appeal concerns the judge’s assessment of benefit. It is submitted that the judge misapplied the decision of the House of Lords in R v. May [2008] UKHL 28, [2008] 1 AC 1028 and failed to take account of subsequent decisions of this court such as R v. Sivaraman [2008] EWCA Crim 1736, [2009] 1 Cr App R (S) 80, R v. Allpress [2009] EWCA Crim 8, [2009] 2 Cr App R (S) 58 and R v. Anderson [2010] EWCA Crim 615. It is submitted that in the light of these authorities the judge was wrong to fix Clark with the burden of the full value of the cars when his role, significant as it may have been for the purpose of the conspiracy, was only to facilitate the export of the cars.

The judge’s ruling expressed itself on this matter as follows:

“The issues for the court to decide were, in the end, quite straightforward. They were these: what was the role of Mr Clark in the conspiracy, and, flowing from this, the benefit figure which should be applied to him bearing in mind that this is a case where particular criminal conduct only is alleged, and the Crown is not pursuing a method for assessing benefits under the criminal lifestyle assumptions… I will first deal with the role of Mr Clark in the conspiracy. It was quite clear from the evidence at trial that Mr Clark was heavily involved as a principal conspirator from late August 2005 up until the initial date of his arrest in November 2005…The operation of the conspiracy during this period relied entirely upon the facility provided by Mr Clark through his company, EazyStore, for the loading of containers. Furthermore, it was quite clear that EazyStore was the principal link with the shipping agent, Mr Owen, through whom the shipping arrangements were made and false documents supplied. The mobile ’phone evidence, which was analysed closely at trial, also showed the close links between Mr Clark and others in the conspiracy. I am entirely satisfied that Mr Clark can properly and fairly be described as an essential cog in the wheel of the conspiracy during this period, a principal conspirator at that material time. He has been described by the prosecution as an integral facilitator, which might be another apt word for his involvement. Accordingly, the assessment of his benefit from the particular criminal conduct should be the valuation of the motor vehicles which passed through his hands at the material times. Those cases to which this court has been referred, which deal with the valuation of particular criminal conduct where a conspirator or participant in a crime is of a limited nature, such as a courier, are not applicable in this case. The appropriate authority is the leading House of Lords decision of May…”
[9]The statutory provisions which the judge was applying were the well-known sections contained in the Proceeds of Crime Act 2002 (“POCA 2002”). Thus section 76 provides:
“(4) A person benefits from conduct if he obtains property as a result of, or in connection with, the conduct… (7) If a person benefits from conduct, his benefit is the value of the property obtained.”
Section 84 contains general provisions regarding property. It provides:
“(2). The following rules apply in relation to property – (a) property is held by a person if he holds an interest in it; (b) property is obtained by a person if he obtains an interest in it;… (h) references to an interest, in relation to property other than land, include references to a right (including a right to possession).”
[10]On behalf of Clark, Mr Bodnar submitted that, whether or not someone in his position could properly be described as a “mere” courier, bailee, custodian or agent, there was no evidence that he was, as it were, an equity partner in the enterprise, that he had a joint interest with the ultimate principals of the conspiracy in the sharing of its proceeds. The Crown’s case had been that Clark was “an integral facilitator”, not a profit-sharing principal. The only evidence in this respect came from Clark and Severn themselves, who had said at trial that EazyStore had rented the containers for £1,300 each. There were 48 containers, making a total of £62,400.[11]On behalf of the Crown, Mr Wyeth QC, on the other hand, submitted that Clark could not be described as a mere courier or custodian acting for a fee, nor was he merely an employee who was involved for a reward in the form of an enhanced wage. He relied on May and sought to distinguish cases such as Sivaranam, Allpress and Anderson. In this respect, he repeated submissions which had been made on behalf of the Crown in its POCA 2002 statements and by himself at the confiscation proceedings before the judge. He submitted that in effect the judge had found in his ruling that Clark was a profit-sharing principal.[12]In the circumstances, it is necessary to consider the authorities, although we bear in mind that ultimately the question posed by the statutory phrase, “obtains property”, is, and has been said to be, a matter of fact raised by ordinary language.[13]R v. May [2008] 1 AC 1028 is a watershed authority, not so much for its decision, but for its reasoning. It concerned a defendant who had conspired with others to cheat HM Customs and Excise of VAT by means of a carousel fraud. During the period he was involved, he was the driving force behind the fraud. The large sums involved were found to have been jointly obtained by the conspirators, through companies jointly controlled by a group which included the defendant. It was analogous to the situation where conspirators had put the proceeds of the fraud straight into their joint bank account. In such circumstances the House of Lords held that the court of appeal had been right to hold that the defendant had benefited to the full amount, and rejected the submission that the loss should be apportioned among the conspirators (while accepting that there might be circumstances where orders for the full amount against several defendants might be disproportionate and an apportionment approach might be adopted). It seems to us that the basic situation in May was not the same as here. What is of general importance, however, is Lord Bingham’s “Endnote” at [48], where he said this:
“Recognition of the importance and difficulty of this jurisdiction prompts the committee to emphasise the broad principles to be followed…(1)…The benefit gained is the total value of the property or advantage obtained, not the defendant’s net profit after deduction of expenses or any amounts payable to co-conspirators…(3)…In many cases the factual findings made will be decisive…(4)…Guidance should ordinarily be sought in the statutory language rather than in the proliferating case law. (5) In determining, under the 2002 Act, whether D has obtained property or a pecuniary advantage…the court should (subject to any relevant statutory definition) apply ordinary common law principles to the facts as found. The exercise of this jurisdiction involves no departure from familiar rules governing entitlement and ownership…(6) D ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else…Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers.”
[14]A similar decision was arrived at in R v. Green [2008] 1 AC 1053, which was heard immediately after May.[15]Jennings v Crown Prosecution Service [2008] UKHL 29, [2008] 1 AC 1046 was heard at the same time as May. It concerned a restraint order rather than a confiscation order. However, the same phrase “obtains property” (there within section 71(4) of the Criminal Justice Act 1988) had to be interpreted. The prosecution claimed that the appellant had jointly with his co-conspirators obtained the full amount of the proceeds of an advance fee fraud conducted by a company of which the appellant was an employee and the principal co-conspirator was the sole director and controlling shareholder. The appellant submitted that he had not obtained more than £50,000 made up for the most part of his salary. This court had held that it was sufficient that the appellant had contributed to a non-trivial degree to the getting of the property. The House of Lords disagreed with this test: a person may contribute significantly to property being obtained without his obtaining it. Although there was sufficient material to support the making of the restraint order, the pending confiscation proceedings, now that the appellant had been convicted at trial, would still have to determine whether he had obtained the benefit of the fraud jointly with his co-defendant.[16]In this context, Lord Bingham commented on the decision in May at [13] as follows:
“It is, however, relevant to remember that the object of the legislation is to deprive the defendant of the product of his crime or its equivalent, not to operate by way of fine. The rationale of the confiscation regime is that the defendant is deprived of what he has gained or its equivalent. He cannot, and should not, be deprived of what he has never obtained or its equivalent, because that is a fine. This must ordinarily mean that he has obtained property so as to own it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else.”
[17]R v. Sivaraman [2009] 1 Cr App R (S) 80 concerned a confiscation order which was determined before May but considered in this court in May’s aftermath. It concerned a conspiracy to launder diesel by removing its red dye and thus making it more valuable. The appellant was a salaried manager at a service station. His employer was the principal conspirator. His basis of plea was that he received £15,000 as his share of the proceeds of the laundered fuel. The value of the duty and VAT avoided was £128,000. The trial judge, with some reluctance, had found that the appellant’s benefit was the full £128,000. Toulson LJ, giving the judgment of this court, reviewed the decisions in May, Jennings and Green. In particular, at para 12 he derived the principal that – “(6)…Where property is received by one conspirator, what matters is the capacity in which he receives it, that is whether for his own personal benefit, or on behalf of others, or jointly on behalf of himself and others. This has to be decided on the evidence: Green, paragraph 15.”[18]In the light of the House of Lords decisions Toulson LJ concluded that the judge had erred. He reasoned the matter as follows:
“17. The crucial question in the case of the appellant was: what was his position in relation to his employer with regard to the purchase and sale of the fuel which generated that pecuniary advantage? It was not the prosecution’s case that the appellant was a joint purchaser and seller of the fuel. At any rate that was not how the matter was presented in the 16(5) statement. Mr Sutherland Williams relied upon the passage in the ruling which recorded that it was accepted that nine deliveries should be “laid at the door” of the appellant. As previously stated, the appellant had admitted receiving eight to ten deliveries, knowing of their illicit nature. But that begs the vital question as to the capacity in which he did so. It would be one thing if he did so as a joint trader with Grange Farm Service Station Ltd or its proprietor, Mr Mangaleswaran; but another if he was acting as an employee… 19. The greater the involvement of a defendant in a conspiracy, the greater will be the appropriate level of punishment. But it does not follow that the greater the involvement the greater the resulting benefit to that defendant. Within the statutory definitions contained in the Act, what benefit the defendant gained is a matter of fact. As we have said, the critical question in relation to the conduct of the appellant in supervising the bunkering operations carried out under his control was the capacity in which he was acting. Was he, in point of fact, a joint purchaser of the fuel for resale as DERV who, by his conduct, jointly gained the pecuniary advantage of being able to resell it as DERV without having incurred the duty which would have had to be paid on purchasing DERV; or was he acting just as an employee? The judge did not find the former. Indeed, it is plain that he believed the position to be the latter. Otherwise he would have had no misgiving in finding that the appellant obtained benefit of the amount which he felt obliged to find. It would be wrong for this court to make a different finding.”
[19]R v. Allpress [2009] 2 Cr All R (S) 58 concerned couriers and custodians of drug moneys. Allpress pleaded guilty to assisting another to retain the benefit of drug trafficking (contrary to section 50(1)(a) of the Drug Trafficking Act 1994). She was paid £800 plus expenses on each occasion, a total of £3,600 plus expenses; but the prosecution submitted and the judge found that she had obtained property in the total additional amount of the sums she carried, namely £156,000. Likewise with another appellant, Symeou, who had received £8,803.20 for her trips, and carried over £1 million in cash. A third appellant, Casal, was a director of a money transfer business who had taken parcels of cash to a money transfer broker for transmission to Colombia. It was agreed that he acted as a courier, that in his case the cash amounted to nearly £10 million, and that he received a total of £66,148 in wages and disbursements. A fourth appellant, Morris, was a solicitor who had assisted a VAT fraudster to launder the proceeds of a huge carousel fraud by passing some £8 million through his client account. A fifth appellant, Martin, pleaded guilty to possessing criminal property, namely £167,000 of drug proceeds, contrary to section 329(1)(c) of POCA 2002. All of the relevant confiscation orders, which had been made on the basis that the benefit of each appellant was in the full amount of the money which had passed through their hands, had been made prior to May. The five appeals were considered by a 5 judge court of appeal presided over by Latham LJ, the Vice-President of the CACD.[20]The court considered R v. Simpson [1998] 2 Cr App R (S) 111, which had been one of the authorities reviewed in May (at its para 17). That case concerned a courier of drug proceeds who had transported £2.5 million in cash on five trips and was caught with a further £0.5 million on his sixth trip. He had been paid £25/30,000 for each trip. The trial judge had found that his benefit had been in the full amount of £3 million. In Allpress, however, this court held that Simpson did not survive May as a binding authority (at para 37).[21]The Crown argued that money laundering offences were special and should be treated differently from the guidance given in May. It may be recalled that at the end of his “Endnote”, Lord Bingham had said that “It may be otherwise with money launderers”.[22]Ultimately, this court, in a judgment given by Toulson LJ, allowed the appeals of the four couriers, who had all acted as physical couriers of cash parcels, but rejected the appeal of Morris, who had used his client account to launder the money. Toulson LJ reasoned the matter as follows:
“30. It was submitted on behalf of the prosecution in some of the appeals that the court was wrong to say in para 12(6) of Sivaraman that “Where property is received by one conspirator, what matters is the capacity in which he receives it, that is, whether for his own personal benefit, or on behalf of others, or jointly on behalf of himself and others.”
We will come to the question whether any of the legislation requires a different approach in relation to money, but we remain of the view that the sentence correctly states the effect of May and others. Otherwise, the judicial committee would not have concluded its report in May by observing that mere couriers or custodians are unlikely to be found to have obtained the relevant property. A mere courier or custodian is a bailee who receives physical possession of property for another.”[23]There then followed this important paragraph:
“31. In Sivaraman the court also addressed two misconceptions which subsequent cases suggest may still be common. One was that in assessing benefit in a conspiracy case each conspirator is to be taken as having jointly obtained the whole benefit obtained by “the conspiracy”
. A conspiracy is not a legal entity but an agreement or arrangement which people may join or leave at different times. In confiscation proceedings the court is concerned not with the aggregate benefit obtained by all the parties to the conspiracy but with the benefit obtained, whether singly or jointly, by the individual conspirator before the court. The second misconception is a variant of the first. It is that anybody who has taken part in a conspiracy in more than a minor way is to be taken as having a joint share in all benefits obtained from the conspiracy. This is to confuse criminal liability and resulting benefit. The more heavily involved a defendant is in a conspiracy, the more severe the penalty which may be merited, but in confiscation proceedings the focus of the inquiry is on the benefit gained by the relevant defendant. In the nature of things there may well be a lack of reliable evidence about the exact benefit obtained by any particular conspirator, and in drawing common sense inferences the role of a particular conspirator may be relevant as a matter of fact, but that is a purely evidential matter.”[24]Toulson LJ continued as follows: 48. To take an everyday example away from the criminal context, if a shopper in a supermarket gives money to a till operator, which the till operator puts in the till, nobody would ordinarily think of the till operator benefiting from that sum of money or of the money being under the till operator’s power of disposition or control in the sense in which the judicial committee used that expression in May and Jennings. The money in specie would be the shop’s money from the moment that the till operator took it from the customer. It may be that the till operator would have physical power to dispose of the money elsewhere; it may be that he or she could put it in their pocket undetected, but that is no different from the physical power of any bailee to use the property for a different purpose from that of the bailment. Moreover, one would not ordinarily regard the till operator’s physical possession of the money as a benefit to the till operator, or as the possession of money which was theirs to control or dispose of, merely because if the operator were to misappropriate and spend it, an innocent recipient would obtain good title. It is a fallacy to argue that because the recipient would obtain a valid title, therefore the money was the till operator’s. The exception to the nemo dat rule exists for commercial reasons, but does not operate so as to confer title on a thief… 49. So far we have been considering the position of a custodian of untainted money. It is difficult to see why the nature of a custodian’s interest in money should be different merely because the custodian knows or suspects that it is tainted by crime. If a criminal asks D, for a reward, to deliver stolen property to a professional receiver and to collect an envelope containing the price which the receiver has agreed to pay, and D does so, we do not see why as a matter of general principle D should be regarded as having an interest in the money which he collects (any more than in the property which he delivers to the receiver) simply because he knows or suspects that the property was stolen, or simply because if D had instead spent the money in a shop the shop keeper would have obtained a good title to it… 64. It was submitted on behalf of the prosecution that, whatever may have been the position under CJA 1988 and DTA 1994, the statements of the judicial committee in May, para 48(6), and Jennings, para 13…(to the effect that ordinarily D will obtain property only if he owns it, or, we interpolate, assumes the rights of an owner, which would ordinarily connote a power of disposition or control), cannot properly be applied to POCA 2002, because s 84(2) provides a wider statutory definition of property. It was further submitted that in so far as those comments were intended to guide courts dealing with confiscation applications under POCA 2002, they were obiter and wrong. 65. The first point to note is that logically this submission is not confined to property in the form of money. The effect of the submission is that in any case where D has possession of criminal property in connection with an offence, D is liable to a confiscation order in the amount of the market value of the property (or the amount of the money, where the property is money)… 69. We consider that the point made by the prosecution in relation to s 84(2), and in particular para (h) (“references to an interest, in relation to property other than land, include references to a right (including a right to possession)”) is a red herring. 70. It is important to note that s 84(2)(h) speaks not of de facto possession (i.e. mere custody) but of “a right to possession”. There is a considerable difference between the two… 72. In the case of the statute which we are considering, the answer to the question whether a person is intended to be regarded as holding an interest in property by mere manual possession, or whether something more is required, is put beyond doubt by the words “a right to possession”… 76. The point was made in argument that a bailee can maintain an action for the value of the goods against a third party who wrongly interferes with his possession. See, for example, The Winkfield [1902] P 42. The reason is that as a matter of policy the law will not allow a wrongdoer to enquire into the nature and limitation of the possessor’s right, but as between possessor and the wrongdoer the law will presume “that the person who has the possession has the property”, in the words of Lord Campbell in Jeffries v Great Western Railway Company (1856) 5 E & B 802, 806, cited by Collins MR in The Winkfield (p 55). That is far removed from the question whether a mere custodian has a right to possession so as to have an interest in property for the purposes of POCA s 84(2). 77. Moreover, even if the mere custodian were held to have a limited interest in the property, the relevant value would be the value of that interest, which if the property was being held purely for another would be nil…79. For those reasons we reject the argument that the judicial committee’s observations in May and Jennings were incorrect or inapplicable in relation to POCA 2002, either in cases involving other forms of property or in cases involving money. The cash courier80. We conclude that if D’s only role in relation to property connected with his criminal conduct, whether in the form of cash or otherwise, was to act as a courier on behalf of another, such property does not amount to property obtained by him within the meaning of POCA 2002 s 80(1) or CJA 1988 s 71(4) or to “payment or other reward” within the meaning of DTA 1994 s 2(3).81. It follows that the appeals of Allpress, Symeou, and Casal are allowed… The cash custodian82. We reach the same conclusion in relation to the mere custodian of cash for another. Accordingly the appeal by Stephen Martin is allowed…[25]Toulson LJ then went on to explain that the case, however, of the “money launderer through the banking system” was different, and thus the appeal of Morris was dismissed. This was because by putting the money into an account over which he had sole operational control and through which he obtained a chose in action in his favour (jointly with his partners), the money became his property. The case was no different from where a money launderer was paid £1 million and transferred an equivalent amount to an offshore account in a different currency.[26]Finally, in R v. Anderson [2010] EWCA Crim 615 (which unlike the other authorities was not before the trial judge) this court considered an appeal about a pilot who was convicted with his co-defendant, Hassan, of a conspiracy to effect illegal entries into this country (“people-trafficking”). Anderson did not give evidence at trial. In discussing an application for leave to appeal against sentence, this court in the judgment of Tuckey LJ rejected the submission that Anderson should be treated as a mere courier. Tuckey LJ said:
“The judge clearly formed the view that Anderson was playing a far larger role than that of courier. The use of a plane on a number of occasions and a plane of which he was a part owner clearly put him in a much higher league than some of the others involved in this conspiracy…”
[27]Anderson’s confiscation proceedings took place in October 2008, after May. Anderson again gave no evidence and called no evidence. He was not represented at the confiscation order hearing. His benefit was assessed at £189,224 mainly on the basis of assumptions arising from a criminal lifestyle. Part of that benefit was £30,000, on the basis that 30 immigrants were charged £1,000 each, a sum which the judge regarded as accruing to all co-conspirators. However, this court reduced that figure to £10,000, having quashed the judge’s order on the basis that he had not properly addressed his fact-finding role as to the whether the proceeds of the conspiracy were held by Anderson jointly with his co-defendant. Elias LJ, in the judgment of this court, reasoned as follows:
“14. In cases where there are two or more principal conspirators and where there is no direct evidence as to the rights to the proceeds of the conspiracy, the relationship of the conspirators may justify the conclusion that the proceeds were jointly owned. It is a matter of inference, to be decided on the balance of probabilities with the burden being on the prosecution. That was the approach of the judge in Green… 16. Where a party to a conspiracy has a minor role it is less likely that the proceeds belong to him jointly with the others, and it may be inappropriate to treat him as having a share of the proceeds as in Gibbons. A clear example is the case of Sivaraman… 17. The issue is whether in the circumstances of this case the judge was right to proceed on the basis of the proceeds being joint property. The problem is that the judge did not anywhere state the basis on which he had concluded that it was right to do so…It appears that the judge thought, wrongly, that it followed from the decision in May that any party to the conspiracy was to be treated as a joint holder of the proceeds of the conspiracy. We are very conscious that, if Mr Anderson had been represented as the judge wished, the point would have been taken on Mr Anderson’s behalf, and the judge could then have considered the position and given a considered ruling. 18. It follows that the judge never gave any appropriate consideration on the question whether the proceeds of the conspiracy were held by Hassan and the appellant jointly. It is therefore our task to consider the evidence such as it was and reach such conclusion as we may. The evidence available to us is very limited. That is in contrast with the position of the judge, who had presided at the trial and might have made appropriate findings had he seen the need to do so… 20. It is clear that here the appellant was far more than just the pilot. However we do not think that it would be fair to conclude from that alone that the proceeds of the conspiracy were the joint properties of the two. Hassan was the primary organiser, who had the connections… 21. Given the lack of clear evidence here and any appropriate finding by the judge, we consider that the assumed division of the proceeds is an acceptable solution as Gibbons shows. As we have said, the Crown accept that this should be the outcome if the finding of joint ownership is not sustained. We have some uncertainty as to whether it is right to divide the proceeds three ways. But that is agreed between counsel, and the contrary was not argued…”

Discussion

[28]In the present appeal, the case of Clark lies tantalisingly between the situations discussed in the above authorities. He was not a courier or custodian of money or drugs, but he was, through his company EazyStore, a bailee of the cars for the purpose of containerising and transporting them to Felixstowe in preparation for their shipment to East Africa. He was an “integral facilitator”, but there was nothing to link him either with the original thefts or with the onward sales in Africa or the proceeds of such sales. His role was no doubt an important part of the overall handling conspiracy, but there was nothing apart from the importance of that role to suggest that the cars were jointly owned by him (or Severn) with other principal conspirators. Nor, like Morris in Allpress,did his involvement amount to putting the cars into his account or his name. The shipment from Felixstowe was in any event arranged by a separate shipping agent, and there is no case that the cars were exported in EazyStore’s or his name.[29]It was nevertheless a weakness of his evidence that he was unable to be in any way persuasive about what his or his company’s financial rewards for their participation were. At trial, at which his defence was that Eazystore handled the operation in the normal course of its business, in all innocence, and charged £1,300 per container, he was unable to establish any proper paperwork for the consignments. If £1,300 was the normal charge for non-criminal business activity, then it was most unlikely to be the true figure charged. As it is, at their confiscation proceedings, Clark and Severn maintained that their only personal benefit was a profit of £200 per container, split £100 each between the two of them, being the profit earned by EazyStore over and above the costs of the operation. The judge was fully entitled to be unimpressed by such evidence or such contentions.[30]However, in our judgment the judge erred when he reasoned, as he appears to have done, from the importance of the role of Clark (“as a principal conspirator…an essential cog in the wheel of the conspiracy…a principal conspirator…an integral facilitator”) directly to a value judgment that “Accordingly, the assessment of his benefit…should be the valuation of the motor vehicles which passed through his hands…”. He distinguished other authorities before him (which included Sivaraman and Allpress) on the ground that there the conspirator’s conduct was “of a limited nature, such as a courier”, and said that the appropriate authority was May. It is true that a courier’s or custodian’s role may be of a more limited nature, although there could be no disguising the importance of the couriers’ roles in Allpress, where for instance Casal was carrying almost £10 million in cash as a director of his company; and the roles of the service station manager in Sivaranam and of the pilot in Anderson plainly went well beyond those of a courier or custodian and were vital elements in those conspiracies. In truth, however, talk of “mere” couriers or custodians is not, or not only, a reference to the possibility that the roles of such conspirators are generally of a more minor nature, but rather, as a matter of principle, that such persons who are paid a fee or salary for their involvement are not conspirators or participants of such a nature as to make it likely, or to suggest the inference, that the property concerned is in their joint ownership. That after all is the ultimate question to which the trilogy of cases in the House of Lords directs attention. As pointed out in Jennings (see para 15 above) and again in Allpress (see para 23 above), a defendant may play an important role in a conspiracy without obtaining property for the purpose of the test of benefit. As in Anderson, the judge in this case proceeded to his decision as he was invited to do by the Crown, but without making clear findings about the capacity of Clark or about whether he had received and dealt with the cars as a matter of jointly obtained property.[31]In Allpress Toulson LJ pointed out that a courier or custodian is a bailee. That was again the role adopted by EazyStore and Clark, as typical, if criminally complicit, bailees concerned in the transportation of goods. It was in the capacity of bailees that EazyStore and Clark received the cars, and sent them on their way to Felixstowe. As bailees, they prima facie received the cars not for their own benefit, but for the thieves or other principals who had acquired the cars and were going to sell them in East Africa. It was we suppose possible that they were going to share as “equity partners” in the proceeds of the sales, and thus possible that they did after all receive the cars as jointly owned property. However, that finding has not been expressly made. It was also possible that they were rewarded, like the appellants in the cases discussed above, by the provision of fees. If so, it was entirely possible that such fees would have materially exceeded the £1,300 per container of which Clark and Severn gave evidence as a proper rental for genuine business. There is some evidence of the significant investment, which EazyStore made in facilitating the onward transportation of the cars, in the fact that it purchased a specialised tractor for handling the containers at a cost of £30,000. That is also some evidence of the kind of substantial rewards which were anticipated.[32]At the hearing of this appeal, we considered where the error of the judge left us, for we found ourselves in the unsatisfactory position which this court experienced in Anderson. However, since February 2010, we now have the power, if a confiscation order is quashed, to remit the confiscation proceedings back to the Crown Court (see section 11(3A) of the Criminal Appeal Act 1968). We thought it right to do so. We therefore quashed the judge’s order in the case of Clark, and remitted the question of confiscation back to the judge, for his determination of the issue of benefit in the light of our judgment. We made this order, allowing the appeal, quashing the judge’s confiscation order in the case of Clark, and remitting the case back to the judge in the Crown Court, at the conclusion of the hearing of this appeal. These are our reasons for reaching those conclusions.

Severn

[33]The case of Severn, who renews his application for leave to appeal, is different, for he settled his confiscation proceedings with the prosecution, and that settlement was approved by the judge. He agreed a benefit figure of £1.5 million and available assets of £85,000. The confiscation order in his case was therefore made in the sum of £85,000. Since his assets were much smaller, the ultimate question of the size of his benefit may have seemed of less importance. £85,000 is still a sizeable figure, but the fact that, even on the case made at trial, EazyStore was supposed to have earned a normal business return of £62,400 on the 48 containers suggests that the figure of £85,000 which Severn agreed is not too large, as an alternative benefit figure, for the assistance which he gave to the export of cars to the nominal value of £3 million or £1.5 million replacement value. There is no validity whatsoever in his submission that his true benefit was only £100 per container, or £4,800. If there was, he would in any event have been most unlikely to have made the agreement with the prosecution which he did.[34]We therefore agree with the single judge, who considered that in the light of the approved settlement it was not open to Severn to challenge his confiscation order. In any event, we think that it is most unlikely that Severn’s settlement of his confiscation will have led to any unfairness to him, even in the light of our judgment concerning Clark. Moreover, as the May trilogy makes clear, there is nothing wrong with joint conspirators each being liable for the full amount of their benefit.[35]We therefore refuse Severn’s renewed application for leave to appeal.

Cited in 2 later judgments