Background
Mark Acklom pleaded guilty in 2019 to five counts of fraud after deceiving a woman about his identity, personal circumstances and intention to marry her, then obtaining more than £300,000 from her. The Crown Court at Bristol sentenced him to 68 months’ imprisonment.
Following delayed confiscation proceedings under the Proceeds of Crime Act 2002, the parties agreed that Acklom’s criminal benefit was £710,000 and that he had made tainted gifts worth £125,000. The Crown Court ordered him to pay £125,000 within three months, with two years’ imprisonment in default. Acklom argued that liabilities arising from Spanish court orders, amounting to approximately €423,000, exceeded his free property and produced a negative figure under section 9(1)(a) that should offset the tainted gifts counted under section 9(1)(b).
The Court’s Holding
The Court of Appeal granted a three-day extension of time and leave to appeal because there was no appellate authority on the statutory issue, but dismissed the appeal. It held that when priority obligations exceed a defendant’s free property, the section 9(1)(a) component is treated as zero, not as a negative amount capable of reducing the value of tainted gifts under section 9(1)(b). The full value of the tainted gifts therefore formed part of Acklom’s available amount.
The court relied on the statutory language, the confiscation regime’s purpose and the nature of tainted gifts. Treating a shortfall under section 9(1)(a) as an offset would undermine the legislation by allowing defendants to reduce their available amount through gifts to third parties. The later-enacted section 5A, although not in force when the order was made, codified the existing objective of depriving defendants of criminal benefit and was consistent with treating any tainted gifts as part of their means. The £125,000 confiscation order accordingly remained in force.
Key Takeaways
- A shortfall arising when priority obligations exceed free property under section 9(1)(a) of the Proceeds of Crime Act 2002 is treated as zero, not as a negative balance.
- The total value of tainted gifts under section 9(1)(b) is added independently and cannot be reduced by that shortfall.
- The court did not need to decide whether Acklom’s Spanish court liabilities qualified as priority obligations because they could not reduce the agreed value of his tainted gifts.
Why It Matters
The decision supplies appellate authority on how separate components of the “available amount” calculation interact in confiscation proceedings. Defendants cannot use unpaid fines, compensation orders or other priority liabilities exceeding their free property to offset tainted gifts.
The ruling also reinforces the confiscation regime’s anti-avoidance purpose: transferring assets to third parties does not shelter their value merely because the defendant’s remaining property is insufficient to meet other court-ordered obligations.