West Law Report

Guidance on making confiscation orders

Posted in confiscation order, House of Lords (case), Times Law Report by mrkooenglish on May 15, 2008

(See also Westlaw report: R v May)

From The TimesMay 15, 2008

Guidance on making confiscation orders
House of Lords

Published May 15, 2008

Regina v May

Before Lord Bingham of Cornhill, Lord Phillips of Worth Matravers, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood

Speeches May 14, 2008

Where codefendants had jointly received property as a result of criminal activity, each was liable to receive a confiscation order representing the entire value, as if he had acted alone, provided he had sufficient assets to meet the order.

The House of Lords so held when giving guidance as to the making of confiscation orders under the Drug Trafficking Act 1994, the Criminal Justice Act 1988, as amended by the Criminal Justice Act 1993 and the Proceeds of Crime Act 1995, or the Proceeds of Crime Act 2002, which brought together the regimes established by the two earlier Acts for post2003 offences.

The committee dismissed an appeal by Raymond George May against the decision of the Court of Appeal, Criminal Division (Lord Justice Keene, Mr Justice Hodge and Judge Jones, QC) (The Times February 15, 2005; [2005] 1 WLR 3902) upholding the decision of Judge Samuels, QC, to make a confiscation order against him.

Mr Andrew Campbell Tiech, QC and Mr Gavin Irwin for May; Mr Oliver Sells, QC and Mr Ivan Pearce for the Crown.

LORD BINGHAM, giving the opinion of the committee, said that the defendant had argued that the intention of the legislation was to strip wrongdoers of their ill-gotten gains but not to deprive them of that which they had never had or to permit recovery of the same sum against different defendants. The overall loss should have been apportioned among those held jointly liable.

However, the sum which the appellant, jointly with others, was found to have fraudulently obtained being, in law, as much his as if he had acted alone and less than his realisable assets, the legislation had required that he be ordered to pay such sum.

For future cases the committee emphasised the following principles: The legislation was intended to deprive defendants of the benefit they had gained from relevant criminal conduct, whether or not they had retained such benefit, within their available means.

It did not provide for confiscation in the sense understood by schoolchildren and others, but nor did it operate by way of fine. The benefit gained was the total value of the property or advantage obtained, not the net profit after deduction of expenses or any amounts payable to co-conspirators.

The court was to ask three questions: 1 Had the defendant, D, benefited from relevant criminal conduct? 2 If so, what was the value of the benefit D had so obtained? 3 What sum was recoverable from D?

Those were separate questions calling for separate answers.

In addressing them the court had first to establish the facts as best it could on the material available, relying, as appropriate, on the assumptions required to be made by the Acts. In many cases the factual findings made would be decisive.

In addressing the questions, the court was to focus on the language of the statutory provision in question. Any judicial gloss or exegesis was to be viewed with caution.

The exercise of the confiscation jurisdiction involved no departure from familiar rules governing entitlement and ownership. D ordinarily obtained property if in law he owned it, whether alone or jointly, which would ordinarily connote a power of disposition or control, as where a person directed a payment or conveyance of property to someone else.

Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, were unlikely to be found to have obtained that property. It might be otherwise with money launderers.

Solicitors: Pattichi Hill & Croques, Ilford; Solicitor, Revenue & Customs.

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