R v Whatcott

Court of Appeal (Criminal Division) [2019] EWCA Crim 1889, Lord Justice Simon, Mrs Justice Moulder and His Honour Judge Thomas QC (Sitting as a Judge of the Court of Appeal Criminal Division), 29 October 2019

Crime - Criminal evidence - Fraud - Appeal against sentence - Dishonesty - Burden of proof - Penalty clauses - Unfair commercial practices

The concept of legitimate interest is not a well-defined concept in criminal law. However, as in seen in this case the "legitimate interest in performance" requirement in the law on penalties is now at the heart of the new test on penalty clauses which anyone subjecting consumers to penalty clauses in contracts for payments should be aware of. The question as is seen in Whatcott can be tied in with fraud offences. The test was established in Cavendish Square Holding BV v El Makdessi; ParkingEye Ltd v Beavis [2015] UKSC 67; [2016] BLR 1; [2016] 1 Lloyd's Rep 55; [2016] AC 1172; [2015] 3 WLR 1373; 162 Con LR 1 ("ParkingEye") but has seemingly been left undefined by the Supreme Court.