Calculating a person’s unlawfully obtained benefit from criminal activity can raise some complicated issues.
Suppose a lotto ticket has been bought with illegally obtained funds, and it wins first prize. Is the unlawful benefit the value of the prize?
What if the ticket had been bought mostly with lawfully obtained funds, but to a small extent with unlawfully obtained money? Is the unlawful benefit the proportion of the prize that is the same as the proportion of the ticket cost that was paid with unlawfully obtained funds? Or, if the ticket could not have been bought at all without the small contribution of the unlawfully obtained funds, is the unlawful benefit the whole of the prize?
And what if the ticket could have been bought with lawful funds, but the purchaser absentmindedly reached into the wrong pocket for the money?
What if land is bought with unlawfully borrowed funds, and at some stage during the period the land is owned the loan is repaid with lawfully obtained funds, and throughout this time the land steadily grows in value?
What if a contract to do work is obtained dishonestly, but the work is done satisfactorily? What if the contract would still have been awarded even if the dishonesty had been known to the other party? What is the relevance of the absence of any loss to the deceived party?
And, as occurred in R v Andrewes (Defendant) [2022] UKSC 24, what if employment is obtained as a consequence of presentation of a dishonest c.v.? How much influence might the false representation have had on the successful application for the job? If the work was done satisfactorily and remunerated according to the contract of employment, what was the unlawfully obtained benefit? What if there had been no other applicants for the job? Or no applicants remotely suitable?
In Andrewes the Court reviews some cases where these sorts of questions are considered. The main one is R v Waya [2012] UKSC 51, [2013] 1 AC 294, which I have discussed here .
And for those of you who are pronoun buffs, try rewriting the first paragraph of Andrewes to remove the gender pronouns:
This appeal raises an important issue on the confiscation regime laid down by the Proceeds of Crime Act 2002 (“POCA”). It concerns what is often referred to as “cv fraud” (“cv” being shorthand for “curriculum vitae”). Typically, as in this case, this occurs where a fraudster includes lies on his or her application form for a job (for example, by including qualifications or experience which he or she does not have) and, as a result, is appointed to the job. The fraudster performs the agreed services satisfactorily and is paid the agreed salary until the fraud is discovered. On a conviction for fraud, should there be a confiscation order stripping the fraudster of his or her earnings (net of tax and national insurance)? In particular, would such a confiscation order be disproportionate under the proviso in section 6(5) of POCA?
My suggestions:
…. lies on an application form …
… by including non-existent qualifications …
… stripping the fraudster of those earnings …
Ho ho. And happy blog-birthday to me for tomorrow! Eighteen years! Merde, how time flies.
