There was no reason to stay confiscation proceedings where a trademark offence had been committed, because trademark offences were lifestyle, repeat offences, which did real damage to those entitled to the profits of a trademark and deprived the manufacturers of the legitimate fruits of the research and development of their product and it was proceeds which mattered rather than blame.

The Court of Appeal so held when allowing an appeal by the prosecution under section 31 of the Proceeds of Crime Act 2002 against a refusal to make a confiscation order and a decision on 8 August 2011 in the Crown Court at Portsmouth (Mr Recorder Parish) that the proceedings be stayed on the ground of abuse of process.

The defendants had been convicted of 13 counts of unauthorised use of a trade mark contrary to sections 92(1)(b) and (c) of the Trade Marks Act 1994.

HUGHES LJ, giving the judgment of the court, held that the recorder had erred in staying the confiscation proceedings as an abuse of process of the court. Criminal lifestyle under the Proceeds of Crime Act 2002 was not limited to the kind of gross criminal offences which attracted long prison sentences. The defendants ran a business which sold infringing wheel trims. The essence of confiscation was the removal of the proceeds of offending and the proceeds could be similar, however greatly the defendant was to blame. These defendants had been aware of the risk they ran because they knew that one car manufacturer, Ford, had successfully obtained an injunction against the Italian manufacturers of the wheel trims, which prevented theirs from being marketed. It was irrelevant whether others had been prosecuted for committing similar offences or had been made the subject of confiscation orders. A stay for an abuse of process could not be invoked where a judge was unhappy about the consequences of the statutory regime imposed by Parliament. There was nothing unfair about removing the defendants’ available assets and nothing disproportionate within the meaning of article 1, Protocol 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms in removing from an unlawful business the proceeds it had generated. There had been no double recovery of the kind found in R v Waya [2012] 3 WLR 1188. The appeal was allowed.