R v Timmins (Mark)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY |
| Judgment Date | 15 November 2005 |
| Neutral Citation | [2005] EWCA Crim 2909 |
| Court | Court of Appeal (Criminal Division) |
| Date | 15 November 2005 |
| Docket Number | No: 200600533 C4 |
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Lord Justice May
(vice-president of the Queen's Bench Division)
Mr Justice David Clarke
Mr Justice Teare
No: 200600533 C4
MR I KROLICK appeared on behalf of the APPELLAN
MR M BEDDOE appeared on behalf of the CROWN
The appellant, Mark Cornfield, is now aged 50. He was born, so we understand it, on 19th May, so that his 50th birthday was 19th May 2006. That is of relevance to this appeal. He appeals with leave against a confiscation order made in the Crown Court at Birmingham by Mr Recorder Tidbury on 29th November 2005. The confiscation order was made under section 71 of the Criminal Justice Act 1988. Its amount was £37,400 payable by 30th June 2006. In default of payment the appellant was to serve 12 months' imprisonment.
Legislation providing for the confiscation of the proceeds of crime is well known to be draconian. It has developed over the years. When it was first introduced there were separate, although similar, statutory provisions for drug-trafficking offences and for other offences not concerned with drugs.
The provisions for those other offences were in Part VI of the Criminal Justice Act 1988. They were amended in 1993 and 1995, but this appeal concerns the provisions as originally enacted because, we are told, the first of the appellant's offences was committed before the amendments came into force.
The provisions of Part VI of the 1988 Act, so far as relevant to this appeal, are as follows. Section 71 provides for the Crown Court to have power, in addition to dealing with an offender in any other way, to make an order requiring him to pay such sum as the court thinks fit. Subsection (2) gave the court a discretion to make such an order. Subsequently, but not relevant to this appeal, that discretion was removed by amendment.
The circumstances for which section 71(2) provides are where the defendant is found guilty of an offence to which this part of the Act applies, as Mr Cornfield was; secondly, where the court is satisfied that he has benefited from that offence or from that offence taken with other defined offences. A further condition was that the benefit was at least the minimum amount. The minimum amount then specified was £10,000.
Section 71(4) provides:
"… a person benefits from an offence if he obtains property as a result of or in connection with its commission and his benefit is the value of the property so obtained."
No problem arises on this appeal, nor did it arise before the Recorder, in determining what the appellant's benefit had been. It was, as we shall show in a moment, a very large amount. Subsection (6) then provides:
"The sum which an order made by a court under this section requires an offender to pay must be at least the minimum amount, but must not exceed -
(a) the benefit in respect of which it is made; or
(b) the amount appearing to the court to be the amount that might be realised at the time the order is made, whichever is the less."
As we have said, the minimum amount is £10,000. It is a feature of this appeal that if it succeeds in full, the amount of the order would go below £10,000; and there would be no confiscation order at all. That would be a quixotic result on the facts of this case but nevertheless it appears to be the result of the legislation. The important part of section 71(6) is that the amount that might be realised has to be taken "at the time the order is made".
There are definitions for the purpose of this part of the Act in section 74. The first definition in section 74(1) is of realisable property, which includes "any property held by the defendant". It also includes "any property held by a person to whom the defendant has directly or indirectly made a gift caught by this part of this Act". Gifts caught by the Act were considered by the Recorder, as we shall see, but do not feature largely in the present appeal.
Section 74(3) provides:
"For the purposes of this Part of this Act the amount that might be realised at the time a confiscation order is made is —
(a) the total of the values at that time of all the realisable property held by the defendant, less …"
—certain things that are not relevant for present purposes. Subsection (4) provides:
"Subject to the following provisions of this section, for the purposes of this Part of this Act the value of property (other than cash) in relation to any person holding the property -
(a) where any other person holds an interest in the property, is -
(i) the market value of the first-mentioned person's beneficial interest in the property, less
(ii) the amount required to discharge any incumbrance (other than a charging order) on that interest; and
(b) in any other case is its market value."
This appeal concerns the market value, if any, of Mr Cornfield's pension fund.
On 20th December 2004 in the Crown Court at Birmingham before His Honour Judge Faber that the appellant pleaded guilty on rearraignment to 11 counts of cheating the public revenue. He was sentenced on 17th January 2005, again in the Crown Court at Birmingham, before Mr Recorder Thomas to 42 months' imprisonment concurrent on the first three counts and he was disqualified from being a company director for five years. On counts 4 to 11 he was sentenced to 18 months' imprisonment concurrent on each, so that his total term of imprisonment was 42 months. There were then the confiscation proceedings whose outcome we have already delineated. He appeals against one aspect of the confiscation order by leave of the single judge. The single judge refused leave on one other aspect.
The facts which gave rise to all this were in summary as follows. Between 1981 and 2000 when the company went into liquidation, the appellant was the principal director and shareholder of Super Electrical Products Ltd. Between 1993 and 2000, by means of false invoices the appellant obtained in excess of £790,000 in cash from the company. The effect was to suppress the company's profits with a resultant tax loss of more than £500,000. He failed to disclose in his tax returns the money he had removed either as income or as loans from the company. Each year he fraudulently took from the company sums in the order of six times more than he was declaring as income in his tax returns. In order to facilitate this fraud, he used false invoices which he forged, using the identity of Wallcott Engineering, a small firm with whom his company did genuine business. That was count 1 on the indictment. Genuine invoices would be copied in order to suit his needs. He would then write out in his own handwriting the particulars in the invoices. In the same way and for the same purpose he forged invoices purporting to come from John Fisher, the subject of count 2; and from Thanos UK Ltd, the subject of count 3. Both of these were enterprises that had done no business with Super Electrical Products, but through whom in their genuine guise the appellant had in respect of John Fisher bought a fitted kitchen, and in respect of Thanos Hotels bought expensive holidays. The appellant had disclosed none of these drawings in his tax returns between 1994 and 2001, consequently cheating the Revenue of income tax to which it would have otherwise been entitled. That was all the subject of counts 4 to 11 on the indictment.
Of the money taken, some £289,000 supported spending on his visa card between 1996 and 2001. Something approaching £490,000 was traced to his accounts. £85,700-odd passed through his wife's accounts. Some was paid to Thanos Hotels for holidays or to Willenhall Garage for a Golf motorcar. £22,000 remained untraced. In general, the appellant spent far more than he declared as earnings on various things, many of which might be described as amounting to a lavish lifestyle. The basis upon which he was sentenced to imprisonment is not relevant to the present appeal.
As to the confiscation proceedings it was agreed that the appellant had benefited from the offence in the sum of £920,000. This sum exceeded his applied assets because, on 16th May 2005, he was made bankrupt and his assets became vested in the...
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