Confiscation & Fraud Update – August 2023


This is the first of what I hope to be a fairly regular contribution to the Chambers Fraud Blog identifying recent cases of interest involving Confiscation Law, as well as other, more general aspects of Financial Crime.

Last month the Crown Court at Southwark made a confiscation order against James Ibori, a former Nigerian State Governor, in the sum of over £101 million, with 8 years’ imprisonment in default. Ibori had been sentenced to 13 years’ imprisonment in 2012 after pleading guilty to fraud and to money laundering on a virtually unprecedented scale. He then unsuccessfully appealed sentence: R. v. Ibori [2013] EWCA Crim 815. Given that Ibori was released from prison in December 2016, and then returned to what is said to have been a hero’s welcome in his home state, it will be interesting to see how successful the UK authorities are in enforcing the recent order, let alone ensuring Ibori’s return to the UK in order to serve the default term in the event the order is not paid.

Two recent Court of Appeal cases on the topic of Confiscation may also be of interest to some practitioners: 

In R. v. Miller [2022] EWCA Crim 1589, trial counsel had erroneously advised the appellant that he had no grounds for challenging a benefit figure in excess of £6 million, and a confiscation order had then been made on the basis that benefit and available amount were agreed between the parties. It was contended on appeal that the benefit figure was incorrect and that it had been wrong of the court below to accept it, even though it had been with the agreement of the parties. Much of the appeal concerned the fact that the frauds giving rise to the confiscation proceedings had been carried out by companies of which the appellant was either sole or joint director and shareholder, and the extent to which it was therefore arguable that the appellant could rely on the ‘corporate veil’ to protect him from liability. In a lengthy and detailed judgment, the Court allowed the appeal, finding that trial counsel had been wrong to agree the benefit figure and to advise the appellant that there were no grounds for arguing that he and the companies had separate legal identities. Counsel’s error amounted to exceptional circumstances such as to allow someone to resile from a confiscation order to which they had consented. The issue of the benefit figure was then sent back for determination in the Court below. For a masterful dissection of the judgment, significant for its review of the authorities on the the circumstances in which the corporate veil can be lifted, see Rudi Fortson KC’s commentary on the case at Crim. L.R. 2023, 4, 300-313.

In R. v. Botting [2023] EWCA Crim 441, the victim of a fraud had issued two cheques payable to the appellant, who then used the moneys to purchase gold bullion and coins. The appellant pleaded guilty to money laundering on the basis that he had owed money to drug dealers who had agreed to write off the debt if he passed the cheques through his account, arranged the purchase of the gold and then paid it over to them. The focus of the appeal was whether the value of the gold should have formed part of the appellant’s benefit for the purposes of the confiscation order made against him. Appellate counsel advanced the somewhat ingenious argument that the appellant’s receipt and crediting of the cheques to his account was subject to a resulting trust in favour of the original fraudsters, as was the gold that was then purchased. As such, it was argued, the appellant had held no beneficial interest in anything. The Court rejected those submissions for a number of reasons. It found the fraudsters had no right at any stage to the cheques, their proceeds or the gold; in the event the appellant held anything on trust it would have been to the benefit of the victim. It was also of the view (a) that by putting the money into an account over which he had sole operational control and through which he obtained a chose in action in his favour, the money became the appellant’s property, and (b) the effect of his transactions with the gold dealers was that he had acquired a beneficial interest in the gold. The judgment makes for an entertaining read. Whatever the legal niceties of the appellant’s case, he was ‘snookered’ – and anyone who has experienced the forensic battering a trip to the Strand can sometimes involve will know only too well what it is to be told, ‘We are unable to accept any aspect of this submission’ (at para. 26 of the judgment).

Finally, it is worth noting the guidance provided in the very recent authority of R. v. Cooper & Others [2023] EWCA Crim 945. The case involved three conjoined appeals concerning the approach to be taken when sentencing for money laundering offences in combination with the offences giving rise to the criminal benefit in question. Although the Court expressly stated that it did not intend to change or develop the relevant law in any way, it felt it would be a useful exercise to set out the correct principles that should be applied. Drawing on existing authority, it confirmed that the key issue is the extent to which the money laundering offence involved additional culpability and/or harm. Where there is none, concurrent sentences are appropriate. Where there is additional criminality, the sentencing judge may either impose concurrent sentences with an upward adjustment, or consecutive sentences – in which case the sentence must not go beyond what is just and proportionate in order to reflect the principle of totality. There is nothing new in that, but the judgment then goes on to identify various specific factors indicative of additional harm or culpability, for example where the offences occur over a later time frame to the primary offending, where there is additional or different criminal property to that involved in the primary offending, where there is a risk of confiscation proceedings being frustrated, where additional planning or sophistication is involved, or where the offending assists in the continuation of the primary offending – as where the profits from drug trafficking are recycled in order to fund further trafficking. As such, the judgment is likely to be relied on in practice as an additional layer of guidance  to that contained in the Sentencing Council’s existing Money Laundering guideline.

Peter Binder

Guildhall Chambers

August 2023


Peter Binder

Call: 1991

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