Jennings v Crown Prosecution Service

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date14 May 2008
Neutral Citation[2008] UKHL 29
Date14 May 2008

[2008] UKHL 29

HOUSE OF LORDS

Crown Prosecution Service
(Respondent)
and
Jennings
(Appellant)

Appellants:

Anthony Elleray QC

Scott Redpath

(Instructed by Hanman Associates)

Respondent:

Andrew Mitchell QC

Stephen Hellman

(Instructed by Crown Prosecution Service)

Ordered to Report

The Committee (Lord Bingham of Cornhill, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Carswell, and Lord Brown of Eaton-under-Heywood) have met and considered the cause Crown Prosecution Service v Jennings. We have heard counsel on behalf of the appellant and respondent.

1

This is the considered opinion of the Committee.

2

Mr Jennings (the appellant) appeals from the order of the Court of Appeal of 24 June 2005, dismissing his appeal from the refusal of Leveson J to discharge a restraint order made without notice by Forbes J under section 77(1) of the Criminal Justice Act 1988. The order prohibited him from removing any of his assets from England and Wales and disposing of or diminishing the value of any of his assets. There were the usual exceptions for ordinary living expenses and legal advice.

3

When the order was made, the appellant was awaiting trial with three others on a charge of conspiracy to defraud. The conspiracy was described by the prosecution as "an advance fee fraud". It was carried on through a company, UK Finance (Europe) Ltd, which had originally been in legitimate business selling second hand cars and arranging finance for the purchasers. The fraud charged took place between December 2000 and August 2001. The company advertised itself as a lender, targeting people with poor credit ratings. Applications for loans were made over the telephone. An administration fee of £70 was required in return for arranging a loan. But in fact the company had no money to lend, and no arrangements with any other source of finance to make loans, and no loans were ever made.

4

Some of the fees were paid into the company bank account and some were paid in postal orders which were cashed at a local post office. The sole director and controlling shareholder of the company was a co-defendant, Mr Russell Phillips, who pleaded guilty to the fraud. The appellant was neither a director nor a shareholder. Throughout the period of the conspiracy, he was an employee of the company and received a salary and other payments, but the prosecution case was that he too was a prime mover in the conspiracy.

5

The prosecution alleged that each of the conspirators had benefited to the tune of the total amount of moneys obtained from the fraud, calculated by the financial analyst employed by the police at £584,637.64. This sum was made up of £460,809.40, which had gone through the company's books, and £123,828.24, which was the value of postal orders cashed at a local post office. The appellant's argument was that, over the period of the conspiracy, he and his wife could not have received more than, say, £50,000, made up of salary, a payment from the company's loan account, and the postal orders which he had cashed "on several occasions" when Mr Phillips was away.

6

The other conspirators pleaded guilty. The appellant was tried between April and June 2005. He was convicted on 6 June 2005. His appeal against the restraint order was argued in April 2005 while the criminal trial was in progress. The Court of Appeal handed down judgment on 24 June 2005, after his conviction. He was sentenced to five years' imprisonment. Mr Phillips was sentenced to three years and four months' imprisonment, the equivalent of a five year sentence with the appropriate discount for a guilty plea. The trial judge must therefore have taken the view that their shares of responsibility for the fraud were roughly equivalent.

7

Since the appellant's conviction, the Crown has pursued the confiscation proceedings, still based on the original total figure but adjusted for inflation, in accordance with section 74(5)(a) of the 1988 Act. Those proceedings have been postponed pending the outcome of this appeal.

8

For purposes of this appeal the committee will treat so much of its opinion in R v May [2008] UKHL 28 as bears on this appeal as if it were incorporated in this opinion.

Restraint orders

9

The Hodgson Committee devoted Chapter 9 of its report, "The Profits of Crime and their Recovery" (1984), to pre-trial restraint and recommended (p 154, recommendation 29) that

"On the application of the police or prosecuting authority a high court judge should have the power to grant, on appropriate terms, an order freezing specific assets or the defendant's assets generally, if there is a prima facie case that he has committed an indictable offence and it appears to the court likely that on conviction the court of trial would impose a fine and or a compensation order totalling £10,000 or more."

Effect was given to this recommendation in sections 7-8 of the Drug Trafficking Offences Act 1986, and then in sections 25-26 of the Drug Trafficking Act 1994. Effect was also given in sections 76-77 of the Criminal Justice Act 1988, which added in section 82(2), ex abundanti cautela, that the power to make a restraint order should be exercised "with a view to making available for satisfying … any confiscation order that may be made in the defendant's case the value for the time being of realisable property held by any person by the realisation of such property". Thus a prospective confiscation order was not to be anticipated by dissipation of assets. Section 76 of the 1988 Act was amended by section 8(2) of the Proceeds of Crime Act 1995 so as to permit a restraint order to be made where, relevantly, proceedings had been instituted and the court was satisfied that there was reason to believe "that the proceedings may result or have resulted in, or that the application is made by reference to, a conviction of the defendant for an offence of a relevant description...

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77 cases
  • R v Blatch and Seagar
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 26 June 2009
    ...in the context of confiscation orders under the proceeds of crime legislation. These are: R v May [2008] 1 AC 1028; Jennings v CPS [2008] 1 AC 1046 and R v Green [2008] 1 AC 1053. An important part of the judgment of Laws LJ in the Court of Appeal in Jennings was disapproved, although in th......
  • R v Karen Neuberg
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 15 December 2016
    ...of the ruling made by Judge Ross in 2005. As the appellant was a sole trader there could be no question as arose in Jennings v The CPS [2008] 1 AC 1046 as to whether the appellant obtained a benefit (see paragraphs 12–14 of the judgment of Lord Bingham). 33 It was submitted by the CCRC and ......
  • R v Bajwa and Others
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 6 May 2011
    ...point for the construction of section 75 must be the statement of Lord Bingham of Cornhill in Jennings v Crown Prosecution Service [2008] 1 AC 1046 at [13] and [14] that the object of the confiscation legislation is to deprive individual defendants of the product of his crime or its equival......
  • R v Ahmad and another
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 2 March 2012
    ...intended the costs of committing an offence to form part of the benefit of the offence. In Crown Prosecution Service v. Jennings [2008] 1 AC 1046, Lord Bingham giving the considered view of the Committee said: "13. … It is, however, relevant to remember that the object of the legislation is......
  • Request a trial to view additional results
3 firm's commentaries
  • Confiscation Of The Proceeds Of Crime In The UK
    • United Kingdom
    • Mondaq United Kingdom
    • 18 February 2010
    ...Benjafield [2002] UKHL 2 at paragraph 13. [2000] 2 Cr App R (S) 10, cited with approval in May (footnote 3) at paragraph 31. Footnote 3. [2008] 1AC1046. [2008] 1AC [2010] EWCA Crim 2 at paragraph 36. The Code is available at http://www.crimereduction.homeoffice.gov.uk/crimereduction026b.pdf......
  • Asset Forfeiture
    • United Kingdom
    • Mondaq United Kingdom
    • 27 March 2011
    ...the 1970s – http://wikicrimeline.co.uk/index.php?title=Operation_Julie s8 of POCA set out at s75 of the Act [2008] UKHL 28 [2008] UKHL 30 [2008] UKHL 29 May, para 48(1) Jennings para 14 Green para 15 This was the opinion of the Court of Appeal in the more recent case of R v Sivaraman [2008]......
  • Asset Forfeiture
    • United Kingdom
    • Mondaq United Kingdom
    • 23 November 2009
    ...the 1970s – http://wikicrimeline.co.uk/index.php?title=Operation_Julie s8 of POCA set out at s75 of the Act [2008] UKHL 28 [2008] UKHL 30 [2008] UKHL 29 May, para 48(1) Jennings para 14 Green para 15 This was the opinion of the Court of Appeal in the more recent case of R v Sivaraman [2008]......
3 books & journal articles
  • Mandatory sentencing for people smuggling: issues of law and policy.
    • Australia
    • Melbourne University Law Review Vol. 36 Nbr. 2, August 2012
    • 1 August 2012
    ...D174/1997, Gaudron and Hayne JJ, 21 May 1998). (322) Jennings v Crown Prosecution Service [2006] 1 WLR 182, 198 [56] (Laws LJ), affd [2008] 1 AC 1046, quoted in International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, 365 [92] (Gummow and Bell JJ). (323) Nic......
  • THE NEW ERA OF CORPORATE VEIL-PIERCING
    • Singapore
    • Singapore Academy of Law Journal Nbr. 2016, December 2016
    • 1 December 2016
    ...‘the veil of incorporation has been not so much pierced as rudely torn away’: per Lord Bingham in Jennings v Crown Prosecution Service[2008] AC 1046, para 16. Thirdly, where the transaction or business structures constitute a ‘device’, ‘cloak’ or ‘sham’, i.e., an attempt to disguise the tru......
  • Assessment of asset forfeiture in targeting Somali piracy ransoms
    • United Kingdom
    • Journal of Money Laundering Control Nbr. 21-4, October 2018
    • 1 October 2018
    ...2012).Importantly, criminal forfeiture does not function as the imposition of a f‌ine (CrownProsecution Service v Jennings [2008]UKHL 29). This is because the aim is to take away thebenef‌it gained from committingthe offence convicted of, whereas imposition of a f‌ine aimsat punishing the o......

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