Allingham & Anor, R v

Factual and Procedural Background

The case concerns convictions of multiple appellants, including the Defendant, for offences under the Waste and Contaminated Land (Northern Ireland) Order 1997 relating to the illegal treatment, keeping, and disposal of controlled waste on land without a waste management licence. The Defendant was convicted of three offences involving the treatment, keeping, or disposal of controlled waste in a manner likely to cause pollution or harm to human health. The waste was found buried on land owned by the Defendant, with evidence indicating that it originated from the Republic of Ireland.

Following conviction, the Defendant received concurrent prison sentences and the prosecution applied for a Confiscation Order under the Proceeds of Crime Act 2002. The trial judge made a confiscation order requiring the Defendant to pay a sum of £252,252 or serve five years imprisonment in default. The Defendant appealed the confiscation order on several grounds, challenging the calculation of benefit, the application of landfill tax, and the length of default imprisonment. The appeals of the Defendant and other appellants with similar convictions were heard together.

Legal Issues Presented

1. Whether the Defendant and other appellants benefited from their particular criminal conduct of keeping controlled waste on land, as opposed to depositing it, for the purposes of making a confiscation order under the Proceeds of Crime Act 2002.
2. Whether the appellants obtained a pecuniary advantage by avoiding payment of landfill tax, and whether such advantage can be included in the confiscation order.
3. The proper calculation of the recoverable amount for the confiscation order, including whether deductions for costs of asset realisation should be made from the benefit or from the available amount.
4. Whether the length of imprisonment in default of payment of the confiscation order was excessive and correctly applied according to statutory limits.
5. The legal effect of payments received prior to the commencement date of certain provisions of the Waste and Contaminated Land (Northern Ireland) Order 1997 on the calculation of benefit.
6. Whether the Court has a duty or a power to make a confiscation order in light of pending legislation imposing remediation duties on the relevant Council.

Arguments of the Parties

Appellants' Arguments

• The payments received by the appellants were for permitting the deposit of waste, not for keeping it, and the offences of keeping waste only came into effect after 8 December 2003; thus, payments prior to this date should not be considered as benefit from criminal conduct.
• The appellants did not evade landfill tax because they were not operators of licensed landfill sites and therefore never personally liable for the tax; consequently, no pecuniary advantage from tax evasion was obtained.
• Confiscating both the sums received for depositing waste and the landfill tax evaded would amount to double recovery; if tax is due, allowance should be made against the sums received.
• The term of imprisonment in default of payment of the confiscation order imposed on the Defendant was excessive, and should be reduced from five to three years based on statutory guidelines.

Prosecution's Arguments

• Under the Proceeds of Crime Act 2002, benefit includes property obtained as a result of or in connection with criminal conduct; the appellants benefited from keeping waste on land as they received payments related to that conduct.
• Evading landfill tax constitutes obtaining a pecuniary advantage if the defendant is personally liable; the appellants, as operators or owners of the sites, were personally liable and thus obtained such advantage.
• The sums received did not include any element of landfill tax, and no allowance should be made against the tax evaded when calculating benefit.
• The trial judges correctly made confiscation orders including sums representing both payments received and tax evaded.
• The costs of realising assets should be deducted from the available amount rather than from the defendant’s benefit to avoid allowing the defendant to retain part of the benefit.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v May (2008) 2 Cr App R 28	Guidance on determining whether a defendant has benefited from criminal conduct and the value of that benefit for confiscation purposes.	The court applied the three-step inquiry from R v May: whether the Defendant benefited, the value of the benefit, and the recoverable sum, emphasizing statutory language and ordinary common law principles.
R v White & Others [2010] EWCA Crim 978	Clarification that evasion of duty or VAT constitutes obtaining a pecuniary advantage only if the defendant is personally liable for the tax.	The court held that the appellants were personally liable as operators or owners, thus properly found to have obtained a pecuniary advantage through tax evasion.
R v Quema [2006] EWCA Crim 2806	Guidance on the appropriate length of imprisonment in default of payment of fines or confiscation sums.	The court applied this precedent to reduce the Defendant’s default imprisonment from five to three years, as the sum was only marginally above the lower statutory band.
R v Cramer (1992) 13 Cr App R(S)	Market value of property for confiscation purposes is net of costs of sale or realisation.	The court held that costs of realising assets should be deducted from the available amount, not the benefit, resulting in an increased confiscation sum.

Court's Reasoning and Analysis

The Court began by distinguishing between the offences of depositing and keeping controlled waste under Article 4(1)(a), (b), and (c) of the Waste and Contaminated Land (Northern Ireland) Order 1997. The appellants were convicted of keeping waste, a distinct offence from depositing it. However, the Court accepted the trial judges’ findings that payments received by the appellants were for the entire process, including keeping the waste, as the waste remained on the land long after deposit and was concealed.

The Court rejected the appellants' argument that payments made before the commencement of the relevant legislation could not be considered as benefit from criminal conduct. It held that benefit is assessed as of the date of the confiscation order, considering conduct and property obtained up to that time, and that the appellants retained the benefit of sums paid irrespective of payment dates.

Regarding landfill tax, the Court noted that the tax is levied on the operator of a licensed landfill site and that the appellants, as owners/operators of the sites where waste was kept, were personally liable for the tax evaded. The Court held that evading such a liability constitutes obtaining a pecuniary advantage under the Proceeds of Crime Act 2002, justifying inclusion of the tax evaded in the confiscation order.

The Court also addressed the calculation of the recoverable amount, ruling that costs of realising assets should be deducted from the available amount (i.e., the net value of assets) rather than from the benefit figure. This approach prevents the defendant from effectively retaining part of the benefit.

Finally, the Court considered the length of imprisonment in default of payment, applying statutory guidelines and precedent to reduce the term imposed on the Defendant from five years to three years, as the confiscation sum was only slightly above the lower threshold for the higher term.

Holding and Implications

The Court DISMISSED the appeals against the confiscation orders in respect of benefit and evasion of landfill tax, affirming that the appellants had benefited from their criminal conduct and obtained a pecuniary advantage by evading tax.

The Court ALLOWED the appeal concerning the calculation of the confiscation order amount, ruling that the deduction for asset realisation costs must be made from the available amount rather than the benefit, and accordingly increased the confiscation order sum for the Defendant to £264,252.

The Court ALLOWED the appeal against the length of imprisonment in default of payment, substituting a three-year term for the previously imposed five-year term, in line with statutory sentencing guidelines.

The decision directly affects the parties by upholding the confiscation orders and adjusting the terms of payment and default imprisonment. No new legal precedent beyond the application of existing statutory provisions and case law was established.