Court of Appeal, Criminal Division
Published March 6, 2008
Regina v Rose (Kevin)
Before Lord Justice Richards, Mr Justice Openshaw and Judge Stephens, QC
Judgment February 21, 2008

When calculating the benefit to a thief or handler of his acquisition or possession of criminal property, the market value of it was the amount it would have cost him to obtain the property legitimately, or the economic value to the loser, rather than what the thief or handler could get for the property if he sold it.

The Court of Appeal, Criminal Division, so held in a reserved judgment allowing an appeal by the Crown, under section 31 of the Proceeds of Crime Act 2002, against a confiscation order made by Judge Mitchell at Nottingham Crown Court after the trial of Kevin Rose who was convicted on October 2, 2006 of three counts of possession of criminal property contrary to section 329(1)(c) of the 2002 Act.

The Crown contended that Rose’s benefit from his criminal conduct was £27,272.50 because police had found four items of stolen property at his property: (i) a Volvo trailer, valued at £9,000, which was restored to its true owner; (ii) the stolen contents of the trailer, namely a quantity of drinks valued at £6,522.50, which were unusable and could not be returned to the brewery which owned them; (iii) a horse trailer, valued at £1,750 which was restored to the company which had insured it but which later went missing; and (iv) a JCB tele-porter valued at £10,000 which was restored to its true owner.

Judge Mitchell had accepted submissions on behalf of Rose that the value of the property restored to its true owners should not be included in the calculation of benefit and accordingly made a confiscation order in the sum of £8,272.50.

Mr David Perry, QC and Mr William Hays for the Crown; Mr Paul Mann, QC and Mr Martin Hurst for Rose.

LORD JUSTICE RICHARDS said that by section 76(7) of the 2002 Act, a person’s benefit was the value of the property obtained. It was the meaning and effect of sections 79 and 80 which were at the heart of the argument.

Their Lordships accepted that the market value within section 79(2) of property obtained by a thief or a handler was the amount it would have cost the defendant to obtain the property legitimately, or the economic value to the loser, rather than what the defendant could get for the property if he sold it, or, therefore, what he could get for his interest in the property if he sold that interest.

On that basis, there was no need to consider the nature of the defendant’s interest in the property obtained or the market value of that interest; the focus was on the incoming value of the property, not the value of the property in his hands. It was irrel-evant that the stolen property had been restored to its true owner.

The judge’s decision seemed to have been based on what he perceived to be the unfairness of taking into account items that had been recovered and were usable but, in their Lordships’ judgment, to take such items into account was fully in line with the legislative policy and the decided cases.

Accordingly, the judge erred and the benefit, properly calculated, was £27,272.50. The appeal would be allowed and that sum substituted in the confiscation order.

Solicitors: Crown Prosecution Service, Nottingham; Tracey Barlow Furniss & Co, Worksop.

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