Andrew Bird represented the successful respondent in the prosecutor’s appeal seeking an increase in a confiscation order: R v Powell [2016] EWCA Crim 1043, in which judgment was handed down today, 27th July 2016.
The prosecutor was Natural Resources Wales (represented by Kennedy Talbot QC) and argued that the pecuniary advantage to be attributed to an individual company director should include the “clean up” costs avoided by the company when it abandoned a waste processing site in South Wales. Karl Masi had represented the Respondent in the Crown Court. Andrew Bird represented her in the appeal, instructed by Emma Harris of Blackfords LLP, Cardiff. He argued that the case did not meet the criteria for the “evasion principle” identified by the Supreme Court in Prest v Prestodel necessary for the court to go behind the corporate veil when considering benefit in confiscation proceedings.
This is the third in a line of cases (the others being Sale and Boyle) in which the circumstances in which a prosecutor can attribute benefit to a company director have been restricted, and marks a shift towards a greater appreciation of reality and proportion in confiscation cases. The case was heard by a 3-judge constitution of the Court of Appeal, Criminal Division, sitting at Cardiff Crown Court.
