33 Chancery Lane
2 Experts
6 Contributions by 33 Chancery Lane Experts
PRACTICE NOTES
In the Crown Court, when the prosecutor applies (or, where the court considers it appropriate, of its own motion), the court is obliged to also consider whether to impose a confiscation order on a convicted defendant. Such an order compels payment of a sum reflecting the benefit obtained from criminal conduct, limited to the assets available to satisfy it. The regime governing confiscation may intersect with, but remains distinct from, civil forfeiture proceedings under section 303Z14 of the Proceeds of Crime Act 2002 (POCA 2002), which operate under different statutory criteria and provisions. For guidance on confiscation orders under the POCA 2002, see Practice Note: Confiscation under the Proceeds of Crime Act 2002. In addition, following conviction in the magistrates’ court for any offence, including summary only matters, if the prosecutor so requires, the court must commit the case to the Crown Court to
Corporate Crime
PRACTICE NOTES
Confiscation proceedings
Confiscation proceedings oblige the court to identify the benefit figure, the recoverable amount and the available amount for a defendant who has gained from their criminality. The benefit represents the worth of what the defendant obtained through their wrongdoing. The recoverable amount ordinarily mirrors the defendant’s benefit. As a general rule, the court directs the defendant to pay a sum equal to that benefit unless they demonstrate that their available amount is lower than the benefit. In that event, the recoverable amount becomes the available amount. The available amount is the sum the court will order the defendant to pay towards meeting the recoverable amount, failing which they risk imprisonment in default. For illustration, a defendant might have stolen £1,000 and then lost it all gambling. That £1,000 remains their benefit. After it has been gambled away, however, the
Corporate Crime
PRACTICE NOTES
Process for making confiscation orders in joint enterprise cases
There is a three-stage method for calculating a confiscation order under the Proceeds of Crime Act 2002 (POCA 2002):
first, determine whether the defendant has benefited from the relevant criminal conduct
second, establish the value, i.e. the quantification, of that benefit
third, decide what amount is recoverable from the defendant
See Practice Note: Confiscation under the Proceeds of Crime Act 2002. This Practice Note outlines how the court approaches the question of benefit in confiscation proceedings arising from joint enterprise cases. For detailed guidance on assessing benefit more generally, see Practice Notes: Confiscation step 1: Does the defendant have a criminal lifestyle?, Confiscation step 2: Has the defendant benefited from relevant criminal conduct? and Determining the recoverable amount (benefit and available amount) under POCA 2002. The leading authority on joint
Corporate Crime
PRACTICE NOTES
Dishonesty
Dishonesty furnishes the mens rea for numerous offences in statute and at common law, yet it is not comprehensively defined by legislation. The Theft Act 1968 (TA 1968) is the key exception, offering a partial articulation of dishonesty, but only for offences within that Act (see: Theft offences—overview). In essence, dishonesty carries its plain English meaning. Whether a defendant has acted dishonestly is a question for the jury, assisted by judicial directions derived from the test in Ivey. The need to establish dishonesty arises in many, though not all, offences spanning the broad categories of financial, business, or corporate crime. For instance, it is required for the principal offences under the Fraud Act 2006 and for false accounting contrary to TA 1968, s 17. It is also a necessary element of certain offences under the Insolvency Act 1986, the Taxes
Corporate Crime
PRACTICE NOTES
Intention
Intention denotes the result the defendant seeks. Offences are often categorised as ones of basic intent or specific intent. The Court of Appeal has labelled this division elusive.
Even so, the Court offered guidance on specific intent: crimes of specific intent require proof of purpose or consequence, and include, though are not limited to, cases where the objective extends beyond the actus reus, sometimes called ulterior intent.
The Court also endorsed the analysis that a line can be drawn between (i) intention considered in light of the actor’s purposes and (ii) intention viewed apart from those purposes. In some instances a general intent accompanying the act is all that is needed to constitute the offence; in others, in addition to that general intent, there must be a specific intent linked to the purpose for which the act is done.
Put plainly, specific intent offences require an
Corporate Crime
PRACTICE NOTES
Strict liability
It applies to offences where the prosecution is not obliged to prove mens rea for one or more components of the crime. What the defendant knew, believed, or intended is typically of no significance. Liability may therefore be fixed by the performance of the act, whatever the state of mind. This stands in tension with the presumption that criminal liability requires proof of both actus reus and mens rea. Wright J in Sherras v De Rutzen remarked that there is a presumption that mens rea—an evil intention, or awareness of the act’s wrongfulness—is an essential element of every offence; yet that presumption can be displaced by the statute’s wording or by the subject-matter it addresses, and both must be assessed. It is generally aimed at regulating behaviour that is especially damaging to the public. Here, risks to society rise markedly. The need to
Corporate Crime
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