(iv) Joint Receipt
Property may be considered to be jointly received by more than one party[1] and in such circumstances will not be apportioned between them,[2] but will be valued for each of them as the market value of the property, regardless of the interest of the other parties to the joint enterprise. So, for example, if the proceeds of crime are transferred into a joint bank account, each signatory of that account can be regarded as having obtained the whole benefit. This is illustrated by Chrastny (No 2)1 7 where the proceeds of crime were jointly received by a husband and wife. He absconded from the jurisdiction and she was liable for the whole amount.
The significance of joint receipt was considered by the House of Lords in May.108 Sixteen conspirators were involved in a conspiracy to cheat the Revenue of ?4.5 million of VAT which was wrongly reclaimed. Companies were used to perpetrate the fraud, which were controlled by the defendants. The House of Lords held that the nature of the fraud enabled the corporate veils to be pierced and that the wrongly reclaimed VAT was to be treated as the joint property of those who controlled the companies. There was no requirement to apportion the benefit between the controllers. It followed that each controller of the company was liable for the full amount received, so that the same sum could be recovered 16 times and the State would recover more than HM Customs and Excise could have lost. This result proves that the statutory regime has nothing to do with literal restitution; since the amount confiscated does not necessarily reflect what the victim had lost. The regime is concerned with disgorging a gain and that gain can be amplified depending on the nature of the circumstances of receipt. But this result raises some difficult issues of principle. The House of Lords affirmed in May that the function of confiscation was not to impose a fine but to deprive a defendant of a benefit. But, if the benefit can be amplified by virtue of joint receipt so that each receiver is liable to disgorge what they are deemed to have received, this can only be characterized as penal and akin to a fine. The Supreme Court in Ahmad; Fields109 recognized it would be disproportionate for the State to take the same proceeds twice over, so it was held that the confiscation order would not be enforced once the sum had been recovered by way of satisfaction of another confiscation order made in relation to the same joint benefit. It follows that the liability of joint defendants is joint and several, in that they are each individually liable, but if one party discharges the full liability, their liability to the State is extinguished. Presumably, the one who discharged the liability of them all can then seek contribution from the others, subject to the exercise of the court’s discretion as to whether it is appropriate to provide restitutionary relief as between criminals.[3]
