R v May [2008] UKHL 28, [2008] All ER (D) 169 (May)
In determining, under the Proceeds of Crime Act 2002, whether D has obtained property or a pecuniary advantage and, if so, the value of any property or advantage so obtained, the court should (subject to any relevant statutory definition) apply ordinary common law principles to the facts as found. The exercise of this jurisdiction involves no departure from familiar rules governing entitlement and ownership.
D ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. He ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject.
Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers. There might be circumstances in which orders for the full amount against several defendants might be disproportionate, and in such cases an apportionment approach might be adopted.
However, a defendant who, jointly with others, is found to have obtained a benefit from his offending, should ordinary have a confiscation order made against him for the total amount found to have been fraudulently obtained, provided he has sufficient realisable assets to meet the order (see also R v Green [2008] UKHL 30, [2008] All ER (D) 183 (May)).
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