R v Hillard (Court Of Criminal Appeal) – Analysis By Ethu Crorie
Published on 05/04/2022
In the recent case of R v Hillard [2022] EWCA Crim 301, the Court of Appeal looked at an appeal against a confiscation order of £384,100. The Defendant had been sentenced to an 18-month conditional discharge and ordered to pay costs in the sum of £16,629.50, in relation to breaches of the Environmental Permitting Regulations 2016.
The Court of Appeal considered, in particular, whether the judge had erred in finding that the benefit figure was the revenue generated rather than the cost of the licence which ought to have been obtained and paid for.
The Court of Appeal endorsed the general proposition that there is “no reason in principle why it should make a difference whether an activity is unlawful by reason of a statutory prohibition except in a case of persons who have been granted a licence (on the one hand) or whether an activity which is otherwise lawful is prohibited by statute unless one has a licence (on the other). The result is the same: the activity is prohibited and the conduct is therefore ‘criminal conduct’.”
In terms of other interesting points, it should be noted that the Court of Appeal highlighted the importance, upon the findings ultimately made, that the Prosecution had clearly explained that the Defendant’s basis of plea was not accepted. The defence submission that the basis of plea was implicitly accepted by virtue of the Court not conducting a Newton hearing, was rejected.
As a result, the Court of Appeal found that “the benefit of the appellant as the whole of the income which he received as a result of operating a facility which ought to have been regulated but was not.”
It is also interesting that the Court of Appeal stated “a defendant in confiscation proceedings who wishes to rely on s.10(6) must provide the court with the information to enable it to adjudicate on the injustice of making an order based on the lifestyle assumptions if he wishes the court to do so. It is not unreasonable for a court to proceed on the basis that a defendant who fails to do that, where that defendant is represented and is able to adduce expert forensic accountancy evidence, has chosen that course deliberately, knowing that any other course would be more disadvantageous to him.”
Ethu Crorie
12CP Barristers