CONFISCATION ORDERS

[2019] EWCA Crim 351
[2019] EWCA Crim 351
CA (Crim Div) (Singh LJ, Soole J, Mark Wall QC)
8 March 2019

The court considered the principles governing the Proceeds of Crime Act 2002 s.6(5), which required the court to make a confiscation order where a defendant had benefited from his criminal conduct, if it would not be disproportionate to require the defendant to pay the recoverable amount. The proportionality exception did not mean that a general discretion was vested in the court. It neither called for nor permitted a general exercise of balancing various interests, including the potential hardship or injustice which might be caused to third parties by the making of an order which included a tainted gift.

[2019] EWCA Crim 413
[2019] EWCA Crim 413
CA (Crim Div) (Males LJ, Stuart-Smith J, Judge Marks QC)
27 February 2019

When considering the extent of an offender’s benefit from criminal conduct for the purposes of a confiscation order, a court could not extend the meaning of particular criminal conduct beyond the conduct of which a defendant had been convicted, or in respect of which he had pleaded guilty. A confiscation order in the sum of £95,920 for rental income received following non-compliance with a planning enforcement notice was reduced to £58 as the charge specifically referred to conduct “on or about” a particular date.

[2019] EWCA Crim 163
[2019] EWCA Crim 163
CA (Crim Div) (Thirlwall LJ, Kerr J, May J)
15 February 2019

The criminal benefit obtained by a foreign exchange dealer who had engaged in missing trader fraud had been rightly calculated by reference to the sums that he had moved through a money service bureau’s bank account. Whilst he had received only a small personal profit by way of commission, that commission was based on the turnover of the business and was therefore a share in the proceeds of the laundered monies.

[2018] EWCA Civ 2543
[2018] EWCA Civ 2543
CA (Civ Div) (Patten LJ, Newey LJ, Coulson LJ)
15 November 2018

It was plain that the pension policies of a company director convicted of VAT fraud constituted “realisable property” under the Criminal Justice Act 1988 so that his appeal against their addition to a receivership order, on the ground that they had no realisable value and would continue to have none for a number of years, failed.

CA (Crim Div) (Green LJ, Goose J, Judge Mark Brown)
26 October 2018

A judge had been entitled to increase the amount of confiscation orders pursuant to the Proceeds of Crime Act 2002 s.22 after the Crown had discovered a further realisable asset, namely a property. The defendant’s case that a third party had an interest in the property was incredible and the judge had not erred in questioning the defendant and third party before reaching that conclusion.

[2018] EWHC 2843 (Admin)
[2018] EWHC 2843 (Admin)
QBD (Admin) (Goose J)
9 August 2018

An order for committal for breach of a confiscation order was quashed where the magistrates had failed to apply the correct statutory test under the Magistrates’ Courts Act 1980 s.82(4). They had not stated that they were satisfied as to the claimants’ wilful refusal or culpable neglect in defaulting on payment, nor that they had considered and ruled out all alternative options of enforcing payment. Instead, they had focused on the claimants’ delay in complying with the order and on the fact that sufficient assets were available to satisfy it.

[2018] UKSC 23
[2018] UKSC 23
SC (Lord Mance DPSC, Lord Kerr JSC, Lord Reed JSC, Lord Hughes JSC, Lady Black JSC)
2 May 2018

The Supreme Court interpreted the Proceeds of Crime Act 2002 (Commencement No. 5, Transitional Provisions, Savings and Amendment) Order 2003 art.4(1). It had not been Parliament’s intention that, if any of the offences on which a defendant had been committed pre-dated 24 March 2003, none of the offences, not even those committed after that date, could be treated as candidates for confiscation orders under the Proceeds of Crime Act 2002 s.156.

[2018] EWCA Crim 1057
[2018] EWCA Crim 1057
CA (Crim Div) (Flaux LJ, Jeremy Baker J, Judge Rees)
1 May 2018

A confiscation order, made in relation to an offender who had pleaded guilty to the fraudulent evasion of duty and money laundering following his involvement in the illegal importation of hand rolling tobacco and cigarettes, was quashed as the judge had erred in his assessment of the offender’s benefit and available assets. Specifically, the judge had erred in concluding that the offender was not personally liable to pay the evaded duty.

[2018] EWCA Crim 944
[2018] EWCA Crim 944
CA (Crim Div) (Simon LJ, Goose J, Judge Tayton QC)
1 May 2018

Although the default term of imprisonment imposed in respect of a confiscation order did not stand alone and was closely linked to the confiscation order, they were distinct orders and the Court of Appeal did not have jurisdiction to hear a prosecution appeal against the default term.

[2018] EWCA Crim 1061
[2018] EWCA Crim 1061
CA (Crim Div) (Treacy LJ, Julian Knowles J, Judge Lodder QC)
26 April 2018

A confiscation order for £2.34 million, representing the benefit from an offender’s part in a large-scale drugs conspiracy, was proportionate. The offender had failed to demonstrate that the available amount was less than his benefit from criminal conduct. His argument that the judge should have considered how much of the proceeds he had retained when calculating the available amount was rejected, as the Proceeds of Crime Act 2002 was directed to the proceeds of crime, not the net profits.

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