Confiscation order - publication on Internet for profit of obscene images taken in UK but accessed worldwide - profits from countries where images lawful properly subject of confiscation order because criminal offence in UK

R v McKinnon: CA (Lord Justice Scott Baker, Mr Justice McKinnon and Judge Gordon): 19 January 2004

The defendant was convicted of conspiracy to publish obscene articles for gain on the internet.

The images had been taken within the UK, but then dispatched to the US, where they had been posted on a Web site and accessed by paying subscribers worldwide, including users within the UK.

The judge found that, for the purposes of section 71(4) of the Criminal Justice Act 1988, the benefit which the defendant had obtained included all the sums he had received from the Web site since they had been obtained 'as a result of or in connection with' the commission of the offence committed within the jurisdiction, and accordingly made a confiscation order for the totality of the income received.

The defendant appealed against the confiscation order on the basis that the trading that had taken place outside the jurisdiction and in countries where it was lawful could not be regarded as criminal or in furtherance of the conspiracy and should not be the subject of a confiscation order.

Patricia May (instructed by Triggs Read & Dart, Devon) for the defendant; Rawdon Crozier (instructed by Crown Prosecution Service, Exeter) for the Crown.

Held, dismissing the appeal, that the terms of section 71(4) were clear and decisive; that the subsection did not require that the benefit be derived directly from the commission of a criminal offence within the UK, it being sufficient that the benefit was derived as a result of or in connection with the commission of such an offence; and that section 71(4) did not exclude from the benefit the profits derived from subscribers abroad, as opposed to those in the UK, where both the criminal conspiracy to publish an obscene article and its actual publication had taken place within the UK.