Mooney v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk (Dorrian),Lord Glennie,Lord Turnbull |
| Judgment Date | 18 July 2019 |
| Neutral Citation | [2019] HCJAC 49 |
| Court | High Court of Justiciary |
| Docket Number | No 1 |
| Date | 18 July 2019 |
[2019] HCJAC 49
Lord Justice Clerk (Dorrian), Lord Glennie and Lord Turnbull
Jennings v Crown Prosecution Service [2008] UKHL 29; [2008] 1 AC 1046; [2008] 2 WLR 1148; [2008] 4 All ER 113; [2008] 2 Cr App R 29; [2008] Lloyd's Rep FC 421; (2008) 152 (21) SJLB 29; The Times, 19 May 2008; [2008] CLY 858
R v Ahmad; R v Fields[2014] UKSC 36; [2015] 1 AC 299; [2014] 3 WLR 23; [2014] 4 All ER 767; [2014] 2 Cr App R (S) 75; [2014] Lloyd's Rep FC 547; [2014] Crim LR 756; The Times, 2 July 2014; [2014] CLY 728
R v Frost [2009] EWCA Crim 1737; [2010] 1 Cr App R (S) 73; [2010] CLY 734
R v Fulton [2019] EWCA Crim 163; [2019] Lloyd's Rep FC 263; [2019] Crim LR 633; [2019] 7 CL 74
R v May [2008] UKHL 28; [2008] 1 AC 1028; [2008] 2 WLR 1131; [2008] 4 All ER 97; [2009] STC 852; [2008] 2 Cr App R 28; [2009] 1 Cr App R (S) 31; [2008] Lloyd's Rep FC 453; [2008] Crim LR 737; 105 (21) LSG 21; 158 NLJ 750; 152 (21) SJLB 29; The Times, 15 May 2008; [2008] CLY 776
R v Sander [2013] EWCA Crim 690
R v Sivaraman [2008] EWCA Crim 1736; [2009] 1 Cr App R (S) 80; [2008] Crim LR 989; [2009] CLY 841
R v Waya [2012] UKSC 51; [2013] 1 AC 294; [2012] 3 WLR 1188; [2013] 1 All ER 889; [2013] 2 Cr App R (S) 20; [2013] HRLR 5; [2013] Lloyd's Rep FC 187; 35 BHRC 293; [2013] Crim LR 256; The Times, 10 December 2012; [2013] CLY 689
Justiciary — Sentence — Confiscation order — Fraudulent scheme to obtain tax rebates for innocent others — Commission paid to accused of a proportion of the rebates obtained — Whether full amount of rebate obtained by accused — Whether benefit to accused of full amount of rebate — Proceeds of Crime Act 2002 (cap 29), sec 143(4), (7)
Joanne Mooney pled guilty, on 26 June 2018, in the sheriffdom of South Strathclyde, Dumfries and Galloway at Airdrie to a charge on indictment of formulating a fraudulent scheme. The sheriff (D O'Carroll) made a confiscation order which assessed the benefit to the appellant from the criminal conduct as being £50,981. The appellant appealed to their Lordships in the High Court of Justiciary against the sheriff's assessment of the benefit from the criminal conduct.
The Proceeds of Crime Act 2002 (cap 29) (‘the 2002 Act’), sec 92, provides that the court in considering the question of a confiscation order against an accused person must decide, inter alia, whether that accused person has benefited from his general criminal conduct. Section 143 provides, inter alia, “(4) A person benefits from conduct if he obtains property as a result or in connection with the conduct. … (7) If a person benefits from conduct his benefit is the value of the property obtained.”
The appellant was a bookkeeper who claimed to provide a legitimate service of completion and submission of tax returns to Her Majesty's Revenue and Customs (‘HMRC’) on behalf of clients and claimed that she could negotiate with HMRC to obtain tax rebates on their behalf. The appellant charged her clients commission on such rebates. She pled guilty in the sheriff court to a charge of formulating a fraudulent scheme whereby she made false claims on tax returns so that her clients would receive rebates from HMRC of sums totalling £50,981 not due to them. The appellant had received £15,294 as commission on the rebates which she had fraudulently obtained. Following sentence, the sheriff made a confiscation order and assessed the appellant's benefit from her criminal conduct as being the sum of £50,981.
The appellant appealed and argued that the benefit to an accused for the purposes of the 2002 Act must be a benefit which that accused has enjoyed, which for the appellant was the commission of £15,294.
The Crown argued that there was no need for property to have passed through the hands of an individual for it to have been obtained by them. What mattered was an individual's control over the disposition of the property. But for the appellant's conduct, there would not have been any repayments.
Held that: (1) whether a person had obtained property as a result of their criminal conduct determined whether that person had benefited (per Lord Justice Clerk, paras 7, 13, 19, Lord Turnbull, paras 35–37); (2) the appellant's actions comprised the entirety of the relevant criminal conduct and her actions alone had resulted in the rebates being paid, and her conduct in devising and perpetrating the fraud was so intrinsically linked to the disposition of the total sum that she could be held to have obtained that total sum (per Lord Justice Clerk, paras 9, 11, 12, Lord Turnbull, paras 39, 41, 42); and appeal refused.
Dissenting (per Lord Glennie) that the word “obtained” required to be given a broad, normal meaning and there was no basis upon which it could be said that the appellant had obtained any more than the commission fees from her criminal conduct; the question of any benefit to the appellant was quite separate from her level of culpability or her centrality to the fraudulent scheme and she had obtained a part of the property, and only a part, when she had received commission paid to her by the individuals for whom she acted (paras 24–29).
R v May [2008] 1 AC 1028, R v Sivaraman[2009] 1 Cr App R (S) 80, R v Ahmad[2015] 1 AC 299 and R v Fulton[2019] Lloyd's Rep FC 263considered and Jennings v Crown Prosecution Service[2008] 1 AC 1046followed.
The cause called before the High Court of Justiciary, comprising the Lord Justice Clerk (Dorrian), Lord Glennie and Lord Turnbull, for a hearing.
At advising, on 18 July 2019—
[1] Lord Justice Clerk (Dorrian)— The appellant pled guilty to a charge of formulating a fraudulent scheme whereby Her Majesty's Revenue and Customs (‘HMRC’) was induced to pay to claimants the sum of £50,981 not due to them; and whereby an attempt was made to induce payment of a further sum, of £35,968. Of the sum of £50,981 referred to above, the appellant, who was claiming to provide a legitimate service of completing tax returns, received £15,294.
[2] The sheriff imposed a sentence which included a compensation order to HMRC in the sum of £15,000. In terms of the Proceeds of Crime Act 2002 (cap 29) (‘the Act’), a confiscation order was made in which the accused's benefit from the criminal conduct was identified as £50,981 with a recoverable amount of £1 and an order for payment of that nominal sum.
[3] The Proceeds of Crime Act 2002 provides:
‘Conduct and benefit
143.–(1) Criminal conduct is conduct which–
(a) constitutes an offence in Scotland, or
(b) would constitute such an offence if it had occurred in Scotland. …
(4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct.
(5) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.
(6) References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and in some other.
(7) If a person benefits from conduct his benefit is the value of the property obtained.’
[4] It is argued that the sheriff erred in determining the appellant's benefit from her criminal conduct in the sum of £50,981 rather than £15,294. In terms of sec 143(4) of the Act a person benefits from conduct if they obtain property as a result or connected with the conduct. In this connection what is critical is the benefit obtained by the individual offender rather than the measure of loss to the dupe. The appellant requires to have received the benefit and been able to exercise control over its disposition. It was submitted that the sheriff had erred, under reference to R v May, R v Waya and Jennings v Crown Prosecution Service. In the latter case Lord Bingham had observed (para 13):
‘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.’
It was only where this last sentence applied that a benefit could property be said to have been ‘obtained’ by the offender. In May a similar approach had been taken (para 48(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. He ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject. 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 the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers.’
[5] The focus is on a power of disposition and control. In the present case the appellant did not have that power; the submitting to HMRC of the details of bank accounts to which the rebates should be paid did not constitute ‘direction’ in the sense required. Following May, the UK Supreme Court in Waya (para 27) emphasised that the issue was whether the benefit had ever been obtained by the offender, as opposed to whether he had retained it. The sheriff sought to distinguish the situation from that in Waya on the basis that it was a case in which there had been no actual ‘loss’ to any...
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