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R – v – Wilkes

GARY JOHN WILKES [2003] EWCA Crim 848  No: 200102859 Z3

Court of Appeal Criminal Division – Lord Justice Latham, Mr Justice Gross and Mrs Justice Cox – Friday 7 March 2003 @ Royal Courts of Justice, The Strand, London WC2

I have had cases where the Crown has included substantial benefit in its S16 assessment that is represented by stolen goods that has subsequently been recovered and returned to the owners. Therefore, the defendant has not benefited within the real meaning of the word. In these cases, the appeal of Mr Wilkes is quoted as precedent for a large benefit and corresponding payment order when somebody has in fact not benefited in financial terms from their crimes.

Mr Wilkes was convicted of burglary, assault and wounding during the course of robberies where the stolen goods were all recovered. He was subject of confiscation proceedings under section 71 of the Criminal Justice Act 1988 where on 20 April 2001 a payment order of £41,380 was made by HHJ Greenwood.

It had been held that his benefit amounted to £60,300 which considered of £40,000 in respect of his criminal lifestyle (because he was living beyond the means of his supplementary benefit claims) together with £7,920 balance from the defendant’s bank account and a further £12,380 that was found buried in his garden.

During the trial and confiscation proceedings the value of the stolen goods from the recent crime (around £7,000) and from a previous crime for which the defendant had been convicted (around £1,270) was discussed as was the fact that in both cases the goods had been recovered by the police in full. It had been held by HHJ Greenwood that the fact that the stolen property had been recovered was irrelevant. Accordingly the benefit was the value of the property obtained in both offences. Despite this it seems that HHJ decided the benefit figure on lifestyle amounts. Much of the thrust of the legal argument within the appeal revolved around whether or not the benefit consisted of any money that was “tainted” by the actual criminal proceeds (i.e. goods that were stolen but then recovered). It seems that the prosecution had not proved that the defendant had actually benefited from the crimes that he had been convicted for, and the benefit figure left out the actual proceeds of crime that had triggered the application of the confiscation under s72 CJA 1988.

The appeal was dismissed, and rightly so. The confiscation proceedings were right to have applied lifestyle assumptions on a career criminal. Also, the benefit had excluded the value of the stolen goods, and given that these had been recovered anyway this seems appropriate. It does seem to me however that although the issue of inclusion of returned criminal proceeds within benefit was aired, in the end it was excluded and lifestyle assumptions adopted.


I approach every confiscation matter where I am instructed by the defence lawyers with an open mind. Although I am bound within a maze of legal principles I am not a lawyer. Therefore, while paying heed to the obvious provisions contained within the legislation and case law, my overriding guideline is the application of common sense. I cannot think of many cases that I have handled (from the twenty or more each year that I accept and prepare an expert accountant’s report for) where this common sense has not prevailed over strict legal argument.

In R – v – Wilkes a career criminal was forced to pay £41,380 in realisable assets from a lifestyle benefit of £60,300. That his sole declared means of living was supplementary benefit, that he had some £20,000 cash in the bank and at home, that he owned substantial equity in his home, that he had been caught and convicted of burglary offenses more than just the “one off” occasion….rather suggests a just outcome for the confiscation which was subsequently held in appeal.

The issue of the inclusion of assets that had been stolen but recovered was never in the end tested, and indeed may or may not have become relevant if the lifestyle benefit could all have been proved to have been obtained from legitimate sources. In the end it did not, and it seems sensible to have left it out, satisfying a punitive confiscation through the lifestyle assumptions.


  • Even though all current cases are being handled through the provisions of the more punitive Proceeds of Crime Act 2002 legislation – the principles being discussed in this earlier case seem still relevant.  The case does not assist in matters where stolen goods, subsequently recovered, are still alleged to be the particular benefit of a crime.
  • I consider R – v – Wilkes to be an unsuitable case to use as precedent where lifestyle assumptions are not adopted – i.e. where stolen goods since recovered are included only as particular criminal benefit.