R v Davies

Date

6 November 2003

Legislation

Criminal Justice Act 1988, s.71(4)
Trade Marks Act 1994, ss. 92(1)(c), 92(3)(b)

Keywords

sentencing; counterfeit goods; trade mark offences; confiscation order; with a view to gain

Counsel

Jonathan Rose for Davies, David Groome for the Crown

Solicitors:

Registrar of Criminal Appeals; Crown Prosecution Service.

Judge:

Waller LJ, Hughes J and Dame Heather Steele.

Court:

Court of Appeal (Criminal Division)

Reported:

[2003] EWCA Crim 3110; [2003] All ER (D) 71.

Summary

Davies pleaded guilty to an indictment containing 13 counts contrary to s92 of the Trade Marks Act 1994. The counterfeit goods in question ranged from shirts bearing the Hugo Boss trade mark to watches bearing the Reebok mark. The indictment was a specimen indictment and was recognised by the judge as such in sentencing. A total of 5,500-odd counterfeit items were seized as well as 140,000 counterfeit plastic bags and 86,000 counterfeit labels.

Given the scale of the operation the judge sentenced Davies to 3 ½ years concurrent on each count. The sentence followed a Newton hearing at which the Crown alleged that the turnover of the counterfeiting business was in the region of £1.5 million per annum.

The sentence was not challenged on appeal, but the prosecution had also served a notice under s.71 of the Criminal Justice Act 1988 asking the court to consider making a confiscation order. It was agreed by both sides that the benefit figure was £1 million.

On appeal Davies submitted that neither of the offences under s.92 of the Trade Marks Act 1994 were qualifying offences for the purposes of making a confiscation order. The reason, he argued, was that all of the counts on the indictment asserted that the offences were 'with a view' to making a gain rather than actually making a gain. The High Court reached the following conclusions:

• the counterfeit property was obtained by Davies in connection with the commission of the offence with which he was charged. In one sense "with a view to gain" demonstrates that the property bearing the false trademark had a value which was of benefit to the appellant and thus there is no reason why s.71(4) Criminal Justice Act 1988 should not be construed as to apply to it;
• consequently the judge did have jurisdiction to grant the confiscation order. There were at least two qualifying offences and as there was no dispute that if that be so, and having regard to the concession made below, the appropriate figure for benefit was the £1 million.

Accordingly the appeal was dismissed.