CONFISCATION ORDERS

The court gave guidance on the correct approach to making a compliance order with a travel restriction component under the Proceeds of Crime Act 2002 s.13A.

[2017] EWCA Crim 1267

There was no basis for quashing a confiscation order where the offender had consented to the valuation of the benefit he had obtained from his criminal conduct. While it was possible that the prosecution might not have proved the amount of the benefit, it was implicit in the offender’s consent that he accepted that the prosecution could have proved what it would have needed to prove had confiscation proceedings gone ahead.

[2017] EWCA Crim 669

The secretary of state had acted unlawfully and had failed to have regard to the limits on her power to detain where she had detained a Nigerian national pending deportation for 1 day and 18 hours when it was unclear whether his presence in the UK would be necessary for the purposes of outstanding confiscation proceedings. As there was no compensatory loss to the detainee in the circumstances, damages for false imprisonment was fixed at £1.

[2017] EWHC 1207 (Admin)

An order requiring a woman to repatriate sums from her Dubai bank account to her UK bank account was made where there was an arguable case that the funds would form part of realisable property in respect of a confiscation order made against her brother. The funds were already subject to a restraint order and their transfer to the UK would reduce the risk of dissipation.

The reasoning in McKinsley v Crown Prosecution Service [2006] EWCA Civ 1092 did not prevent the CPS from resisting the issue of a certificate of inadequacy under the Criminal Justice Act 1988 s.83(1) on the basis that the applicant now had assets which had previously been successfully secreted.

[2017] EWCA Civ 185

A confiscation order imposed on a woman following her conviction for social security offences was not disproportionate, even though the family home might have to be sold to satisfy it.

[2017] EWCA Crim 57

The Court of Appeal overturned a judge’s decision that the prosecution had failed to show exceptional circumstances justifying an extension to the two-year time limit for confiscation orders. The judge had had insufficient regard to the delays caused by the defendant, and any prejudice from the prosecution’s application for an adjournment of the confiscation hearing could have been met with a costs order.

[2017] EWCA Crim 33

The wife of a convicted fraudster was unsuccessful in challenging the presumption of an equal beneficial interest between the spouses in the matrimonial home, for which she had provided the majority of the purchase price. There was insufficient evidence of a common intention to displace the presumption that equity followed the law, so their beneficial interests in the property were equal.

A confiscation order imposed on an offender who had a “criminal lifestyle” for the purposes of the Proceeds of Crime Act 2002 s.75(2) was reduced to reflect the proper extent of the benefit obtained from his criminal conduct. The offender had operated a sham educational college, offering students immigration advice when not permitted to do so, and finding them accommodation and work which resulted in breaches of immigration laws.

[2017] EWCA Crim 3

A judge was entitled to make a confiscation order where an offender had obtained a benefit through carrying on a business under a prohibited name, and to determine that the benefit obtained through the use of the name was the turnover. Although there had been a change in the law as a result of the decision in R. v Waya (Terry) [2012] UKSC 51, on the basis of the information before the court there was nothing from which it could infer that the amount of the order was in any way disproportionate.

[2016] EWCA Crim 1927

The court allowed an appeal out of time against a confiscation order as subsequent events related to the beneficial ownership of properties had altered the factual basis on which the original order had been made. The court stated that substantial injustice would otherwise have been caused to the appellant, but emphasised that it would be a very rare case where a party could pursue an appeal in such a way so long out of time.

[2016] EWCA Crim 2139

The Private Security Industry Act 2001 s.3(1) criminalised the undertaking of licensable activity without a licence. Such activity thus amounted to criminal conduct within the meaning of the Proceeds of Crime Act 2002 s.340(2) and a confiscation order could be made in respect of any benefit accrued.

[2016] EWCA Crim 1049

Two directors of a company, who had been convicted of consenting or conniving in a company’s failure to comply with the condition of an environmental permit, and in its commission of an offence of treating, keeping or disposing of controlled waste in a manner likely to cause pollution, did not have personal liability under confiscation procedures for the costs of cleaning up the company’s polluted site.

[2016] EWCA Crim 1043

The Divisional Court interpreted the Magistrates’ Courts Act 1980 s.79(2) in a conjoined judicial review and an appeal against case stated that raised similar issues concerning the calculation of default sentences pursuant to that provision.

The provisions of the Serious Crime Act 2015 s.10, which increased the maximum periods of default for confiscation orders between £100,000-£500,000 from three to five years, applied to confiscation orders made in relation to offences committed before the Act came into force. However, it had been wrong to impose the maximum default period for an order for £108,000.

Offenders could not avoid confiscation proceedings brought under the Proceeds of Crime Act 2002 s.6 by leaving the country after the proceedings were initiated and claiming to be an absconder within s.6(8) when determination of the issues began. Confiscation proceedings under s.6 commenced from the time that the court agreed with the CPS that it was appropriate to proceed under that section, not when the court embarked on a determinative hearing.

[2017] EWCA Crim 933

A judge’s seriously flawed approach to the question of the recoverable or available amount when making a confiscation order following an offender’s conviction for conspiracy to import cocaine into the UK had resulted in an excessive order being imposed. The judge had been entitled to include the value of the drugs in the benefit obtained by the offender from his criminal conduct, but the seizure of the drugs meant that they no longer represented a realisable asset.

[2016] EWCA Crim 44

The court refused to grant a certificate of inadequacy under the Drug Trafficking Act 1994 s.17 in respect of a confiscation order imposed after the applicant was convicted of importing cocaine. Instead of providing an honest account of the profit he made from his criminal activities, he simply ignored the evidence that he had made substantial sums from the illegal drugs trade and merely asserted that he was unable to meet the confiscation sum.

[2016] EWHC 455 (Admin)

A judge had erred in treating the turnover of a company as benefit obtained by two of its directors individually for the purposes of confiscation proceedings, and in treating the company’s assets as their realisable property, when extending the appointment of an enforcement receiver to cover the company’s assets. The judge had unjustifiably departed from established principles of company law when piercing the company’s corporate veil.

[2016] EWCA Crim 19

A confiscation order in the sum of £20,000, which represented the value of a “tainted gift”, was not disproportionate, despite the fact that the defendant was unable to recover the gift.

[2016] EWCA Crim 10

In confiscation proceedings, sums recovered from money launderers which, although obtained during the period of the commission of a missing trader fraud, related to the perpetration of previous frauds did not relate to the same joint benefit obtained and were not to be taken into account, or off-set, against confiscation orders made against the conspirators to the fraud.

[2016] EWHC 304 (Admin)

When making a confiscation order and assessing the amount of benefit obtained by an offender, the court should ignore the total amount of VAT for which the offender had accounted to HMRC. To include such VAT in a confiscation order would be disproportionate and a breach of ECHR Protocol 1 art.1.

[2015] UKSC 73

In the cicumstances, payments that had been made by an individual, who was subject to a confiscation order, for child maintenance were not a gift as the payments, wholly or partly, discharged his legal duty to his children. The payments had to be deducted from the amount of the confiscation order.

[2015] EWCA Crim 1958

Where a period of imprisonment was being, or had been, imposed in default of full payment of a confiscation order imposed pursuant to the Drug Trafficking Act 1994, credit for any part payment was to be calculated by reference to the sum due at the point of enforcement, namely the sum originally ordered plus accrued interest.

[2015] EWCA Civ 1148

The court made a declaration that a husband, who was subject to a confiscation order, was solely entitled to the legal and beneficial interests in the former matrimonial home and that it would not exercise its discretion under the Matrimonial Causes Act 1973 to transfer to the wife any part of the beneficial entitlement. The husband’s interest in the property was tainted by his drug-related criminality and the wife’s application under the Act was tainted by her own knowledge of that activity.

The Court of Appeal gave guidance on the approach which the Crown Court should take where the prosecution sought both a confiscation order and a compensation order against a defendant who had the means to satisfy both orders.

[2015] EWCA Crim 1731

A judge had not erred in treating tainted gifts as part of the offender’s realisable property when imposing a confiscation order. The judge had been cognisant of his discretion under the Criminal Justice Act 1988 s.74(10)(b) and had decided to exercise it against the offender.

[2015] EWCA Crim 2332

A district judge had not erred in imposing a prison sentence in default of a confiscation order, which had been made on consent, where the offender had delayed in realising assets, failed to pay the amount owed and not applied to vary or appeal the order despite having been given time to do so.

Where a husband used the proceeds of his criminal activities to buy a property and pay the mortgage, his wife’s assumption of mortgage liabilities following his investigation for fraud did not create valuable consideration which would prevent the Proceeds of Crime Act 2002 s.78 from applying.

[2015] EWCA Crim 1820

The court upheld a £30,000 fine and a confiscation order that included the income, not just the profit, accrued by a company that had pleaded guilty to depositing and disposing of waste without the relevant environmental and waste management permits.

[2015] EWCA Crim 1908

A judge had given sufficient reasons for his decision to make a confiscation order in the sum of £746,458, and there was no risk of serious injustice in him having relied on the fact that the offender had only provided very little written evidence of his income. It was contrary to the interests of justice to allow the offender to adduce further evidence in support of his appeal against the confiscation order as he had given no reasonable explanation for failing to adduce it earlier and it was, in any event, doubtful whether it would assist his case.

There was no general proposition that a compensation order would not usually be made in confiscation proceedings where the making of such an order would require the sale of a family home. While a potential consequential forced sale of a family home was a matter to be taken into account in confiscation proceedings where a compensation order was sought, it was not to be taken as some kind of trump card in resisting the making of a compensation order or a direction under the Proceeds of Crime Act 2002 s.13(6).

[2015] EWCA Crim 1448

The Proceeds of Crime Act 2002 s.77(5)(a), which concerned tainted gifts, should not be given a literal construction, as that would require the court to disregard gifts made on the day on which the relevant offence was committed; properly construed, s.77(5)(a) covered all gifts made after the time of commission of the offence, whether they were made on the date the offence was committed or later.

[2015] EWCA Crim 1324

A judge had not erred in her calculation of the “available” amount when making a confiscation order against a married couple who had pleaded guilty to trade mark offences involving the sale of counterfeit goods; the appellants had failed to establish that there should be a discount from the available amount on account of expenses they had incurred.

[2015] EWCA Crim 1076

It was appropriate to reduce the amount payable under confiscation orders which had been imposed on a married couple who had been convicted of offences relating to the dishonest claiming of benefits. The orders should be re-assessed on the basis of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988, in which the calculation of the recoverable amount was based on the difference between the amount of benefits the claimant actually received and the amount he would have received were it not for the overpayment.

[2015] NICA 31

In calculating the benefit figure for the purpose of making confiscation orders under the Proceeds of Crime Act 2002 s.6 in relation to participants in a VAT carousel fraud, it was irrelevant that the total amount of the inputs claimed from HMRC did not produce an actual gain for those offenders, since there was no injustice for the purposes of s.10(6)(b) in treating the fruits of their fraudulent claims as part of the benefit where they had chosen to pass them onto the next link in the carousel chain.

[2015] EWCA Crim 816

There was no merit in the defendant’s submissions as to the amount due under a confiscation order made in 2003; he was doing his level best to avoid making any further payment, to go behind decisions unfavourable to him, to re-run arguments he had already lost and to put the CPS and the enforcement receiver to as much trouble and expense as possible.

[2015] EWHC 1199 (Admin)

The making of a confiscation order against a cattle farmer who had allegedly been involved in the unlawful slaughter of cattle and the unlawful sale of their meat was vitiated by a number of flaws.

[2015] EWCA Crim 713

By virtue of the Senior Courts Act 1981 s.29(3), the Divisional Court had no jurisdiction to consider an application by the CPS for judicial review of a Crown Court’s refusal to make a confiscation order because such an issue related to trial on indictment.

When a judge was considering whether it was appropriate to make a confiscation order against an offender who had pleaded guilty to conspiracy to commit fraud, there was a distinction to be made between a courier or custodian of stolen property who had sought to exercise no rights in relation to that property, and the person who had obtained the property from another and thereby assumed the rights of the owner. By his actions, a conspirator had usurped the rights of the true owners, and on that basis he was to be distinguished from the couriers in R. v Allpress (Sylvia) [2009] EWCA Crim 8, [2009] 2 Cr. App. R. (S.) 58 and the bailee in R. v Clark (Martin) [2011] EWCA Crim 15, [2011] 2 Cr. App. R. (S.) 55 who had merely held the relevant criminal property with the permission of and under the direction of those who had transferred it to them and had not themselves usurped the rights of the true owners.

[2015] EWCA Crim 797

Where a judge had sentenced an offender for drug offences after postponing confiscation proceedings and, despite the prohibition on doing so in the Proceeds of Crime Act 2002 s.15(2), had made a forfeiture order, the court was not deprived of jurisdiction to make a later confiscation order in the postponed proceedings. The fact that the drugs had been seized did not mean that the appellant had not received any benefit for the purposes of confiscation proceedings.

[2015] EWCA Crim 385

The court summarised the correct test for liability to pay excise duty upon goods imported as part of an illegal conspiracy. A judge had correctly concluded that two offenders were liable for excise duty because they were in control of the bills of lading when the goods arrived, and used them to take possession of the goods. The fact that the goods were under surveillance the entire time did not mean that customs officers had been in control of the goods.

[2015] EWCA Crim 384

A judge had erred in holding that he had jurisdiction to make a confiscation order following a postponement order under the Proceeds of Crime Act 2002 s.14 where the prosecution had not complied with the timetable for the confiscation proceedings. The court had made a forfeiture order, contrary to s.15(2), meaning that s.14(12) applied to prevent the prosecution relying on the saving provision of s.14(11).

[2015] EWCA Crim 305

Applications for certificates of inadequacy made under the Criminal Justice Act 1988 s.83 were refused where the fraudsters on whom confiscation orders had been imposed were accountants, well-versed in money management, who had not exercised the required level of diligence and endeavour to realise the identified assets, but instead had continued their attempts to establish that the funds in question were not realisable in defiance of the confiscation order.

[2015] EWHC 446 (Admin)

A defendant in criminal proceedings might, when appropriate, be required to pay both a fine and compensation in relation to the same offence. The fact that a local authority might seek to recover benefits paid in consequence of a fraudulent application did not preclude the making of a compensation order in respect of the same sum.

[2015] EWCA Crim 382

A confiscation order in the sum of £200,000 was upheld where the defendant had declined to provide any evidential assistance as to the operational costs of a drug trafficking conspiracy in which he had played a leading role. In the absence of such evidence, the judge had been entitled to base his assessment of the defendant’s share of the profits of the conspiracy by reference to a coded receipt book which recorded the relevant transactions.

[2015] EWCA Crim 69

A confiscation order against a landlord who let his property to numerous tenants in breach of a planning enforcement notice had properly been made for the full amount of rents received. Although a company had collected the rents, the landlord had obtained the benefit, and in the absence of his criminal conduct in ignoring the notice the rents would not have come within his control. The fact that the leases were lawful had been properly considered.

[2014] EWCA Crim 2344

A house was realisable property of the defendant’s and could be sold to satisfy a confiscation order made against him; the evidence revealed that a deed of trust purporting to show that the defendant held the property on trust for others was a sham.

[2014] EWHC 3776 (Admin)

A confiscation order made following a defendant’s guilty plea to conspiring to cheat the revenue out of the duty paid on alcohol, where the defendant had been producing counterfeit vodka, was quashed. In valuing the benefit obtained, the judge’s finding that the wholesale black-market value of a bottle of counterfeit vodka was £5 had not been supported by any evidence.

In a case where confiscation orders were made following convictions for conspiracy offences, and where the judge had made the same findings of fact in relation to each of three defendants, it was not open to the judge, when apportioning the jointly obtained benefit, to apportion the particular benefit in relation to one defendant as being one-third of the jointly obtained benefit, whilst in the case of the other two to apportion the particular benefit between the three of them in equal shares.

[2014] EWCA Crim 2478