Proceeds Of Crime: The Benefit Of Paying For Criminal Property

1. A defendant's 'benefit' from criminal conduct is the proceeds of his crime, not his net profit. This, we thought, was settled law, so that it is irrelevant to the calculation of benefit that the thief or handler paid for the stolen property he acquires. But this latter proposition may have been put in doubt by the decision of the Court of Appeal in R v Grant Williams [2011] EWCA Crim 275. In that case the Court decided that where drugs possessed by a defendant were purchased using legitimate funds, the value of those drugs should not be included in the calculation of benefit.

2. This article will suggest that defence practitioners may be able to argue that the principle established in R v Grant Williams applies to all cases, regardless of the type of criminal property involved. The principle arguably applies to thieves, handlers and all those guilty of possessing criminal property, where they have paid for the property acquired.

   Possessors of Stolen Property

3. Thieves and handlers, and persons convicted of possessing criminal property (section 329 of the 2002 Act) benefit from their criminal conduct, provided they 'obtain' the stolen property as a result of or in connection with their offence (section 76(4) of the 2002 Act). 'Obtain' was defined in R v May [2008] 1 AC 1028. In essence, if the person comes to own the property, he has 'obtained' it.

4. For the purpose of deciding whether the thief, handler or possessor of stolen property has benefited and, if he did, the value of his benefit, the following matters are irrelevant:

   That D did not intend to sell the property. That D no longer holds the property, whether he has destroyed it, or consumed it, or sold it and spent the proceeds. That D paid for the item of property. The court is concerned with the proceeds of crime, not the net profits of crime. So, for example, the handler who pays £500 for a stolen car worth £1,000 benefits from his criminal conduct. The value of his benefit is £1,000 (rather than nil, or £500). 5. So that is the position in relation to one type of criminal property (stolen property). What is the position in relation to another type of criminal property, namely controlled drugs? One would expect the position to be the same. But is it?

   Mere Possession of Drugs

6. The value of controlled drugs may now be included in the calculation of the benefit figure: R v Islam [2009] 1 AC 1076. This means, for example, that the value of controlled drugs imported by a drug...