Nelson had been found possessing a stolen digger worth andpound;14,000. It was returned to the owner. He was to receive andpound;1,000 for supplying documents for it. Pathak used monet stolen from his employers to purchase property, but had repaid the money stolen. The property was ordered to be confiscated. Paulet as an immigrant had worked illegally. He was ordered to repay his net earnings. The Crown appealed against an order staying their applications under the 2002 act as an abuse, and oppressive.
Held: The CPS application had been in accordance with statutory provisions, and it was wrong to treat such an application as an abuse. The case of Smith remains good law despite the decision in Jennings.
Lord Judge was concerned that stays for abuse were being too readily granted by the courts: ‘Abuses of the confiscation process may occur and, when they do, the appropriate remedy will normally be a stay of proceedings. However an abuse of process argument cannot be founded on the basis that the consequences of the proper application of the legislative structure may produce an ‘oppressive’ result with which the judge may be unhappy. Although the court may, of its own initiative, invoke the confiscation process, the responsibility for deciding whether properly to seek a confiscation order is effectively vested in the Crown. When it does so, the court lacks any corresponding discretion to interfere with that decision if it has been made in accordance with the statute. The just result of these proceedings is the result produced by the proper application of the statutory provisions as interpreted in the House of Lords and in this court. However to conclude that proceedings properly taken in accordance with statutory provisions constitute an abuse of process is tantamount to asserting a power in the court to dispense with the statute.’
Judges:
Lord Judge LCJ
Citations:
[2009] EWCA Crim 1573, [2009] WLR (D) 266, [2010] 2 WLR 788
Links:
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Basso and Another v Regina CACD 19-May-2010
The defendants had been convicted of offences of failing to comply with planning enforcement notices (and fined andpound;10.00), and subsequently made subject to criminal confiscation orders. The orders had been made in respect of the gross income . .
Lists of cited by and citing cases may be incomplete.
Criminal Sentencing
Updated: 30 July 2022; Ref: scu.365622