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.
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.
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.
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.
Where the prosecution had applied under the Proceeds of Crime Act 2002 s.22 to recalculate the available amount under a confiscation order and it was accepted that the benefit figure fell to be calculated in accordance with R. v Waya (Terry)  UKSC 51, a judge should not have proceeded as if Waya had not been decided. The sum of a confiscation order was therefore reduced from £575,000 to £198,000.