Anita Whittle [2019] EWCA Crim 1897

The appellant raised an issue about the assessment of a sum she was ordered to pay under a confiscation order.

As a Parish Clerk, she stole money on two occasions by transferring money from the Parish account to her own account and paying cheques into her account. The total amount taken was £11,972.66. Two further offences were committed of dishonestly making a false representation. She misappropriated money by representing it was being paid into a pension fund for her benefit when she was receiving it herself. The money taken in this way was £14,928.64.

A confiscation order was subsequently made for the full sum of £26,901.30.

The defence argued it was disproportionate for the appellant to pay the sum of £14,928.64 which was supposed to have been paid into a pension fund for her, as she would have received the benefit of it in any event. The judge appears to have seen some force in this argument but ultimately concluded it was not disproportionate to include the sum.

The same submission was made on appeal. Further, an issue was raised whether, on the facts of this case, the appellant’s benefit from her conduct was the full value of the pension contributions, or a lesser amount representing the benefit of the early receipt of sums that would in due course have been paid as pension payments.

Held: it is not necessary to decide the questions of valuation, deciding what amount it is proportionate to pay is not an accounting exercise. A legitimate and proportionate confiscation order may require a defendant to pay the whole of the sum which he has obtained by crime without enabling him to set off expenses of the crime. There is no difference in principle between costs that would have been avoided and benefits that would have been gained if the defendant had acted lawfully.

The appeal was dismissed.