Source: All England Reporter
Publisher Citation: [2008] All ER (D) 274 (Jun)
Neutral Citation: [2008] EWCA Crim 1323
Court: Court of Appeal, Criminal Division
Judge:

Hughes LJ, Smith J and Judge Loraine-Smith

Representation Christopher Coltart (instructed by Russell Jones & Walker) for the defendant in the first appeal.
  David Walbank (instructed by the Crown Prosecution Service) for the Crown.
  Ian Wheaton (instructed by Andrews McQueen) for the defendant in the second appeal.
  Stuart Ellacott (instructed by the Crown Prosecution Service) for the Crown.
Judgment Dates: 20 June 2008

Catchwords

Sentence - Confiscation order - Proceeds of crime - Offences of Dishonesty - Victim not having brought civil claim - Defendants having repaid or standing ready to repay victim - Defendants being required to pay back more than if they had left victims to make civil claims - Whether court having discretion to impose confiscation order despite mandatory wording of statute - s 71 - ss 6, 13.

The Case

The court retained the jurisdiction to stay an application for confiscation, as any other criminal process, where it amounted to an abuse of the court's process. That power existed where it would be oppressive to seek confiscation. It was not sufficient to establish oppression, and thus abuse of process, that the effect of the confiscation order would be to extract from a defendant a sum greater than his profit from his crime(s). It might amount to an abuse of process for the prosecution to seek a confiscation order in cases where: (1) the defendant's crimes were limited to offences causing loss to one or more identifiable loser(s); (2) his benefit was limited to those crimes; (3) the loser had neither brought nor intended any civil proceedings to recover the loss; but (4) the defendant either had repaid the loser, or stood ready willing and able immediately to repay him, the full amount of the loss, which would result in an oppressive order for the defendant to pay up to double the full restitution and would thus deter him from making it. Whether an application for confiscation was or was not oppressive in the limited class of cases, would fall to be considered by the trial judge individually on the facts of each case.

Practice Areas

If you are a LexisLibrary subscriber you can read more about this case here.