The court considered the circumstances under which it might exercise its jurisdiction to prevent an abuse of process in confiscation proceedings. The circumstances where a confiscation might be oppressive are: ‘where demonstrably (i) the defendant’s crimes are limited to offences causing loss to one or more identifiable loser(s), (ii) his benefit is limited to those crimes, (iii) the loser has neither brought nor intends any civil proceedings to recover the loss, but (iv) the defendant either has repaid the loser, or stands ready willing and able immediately to repay him, the full amount of the loss.
In those cases, the Crown accepts, and we hold, that it may amount to an abuse of process for the Crown to seek a confiscation order which would result in an oppressive order to pay up to double the full restitution which the defendant has made or is willing immediately to make, and which would thus deter him from making it. In particular, although the confiscation jurisdiction is rightly described as draconian and often as penal in nature, we do not accept the contention that it is a sufficient justification for seeking a confiscation order in the limited class of cases which we are here dealing with that the Crown wishes to inflict an additional financial penalty upon the defendant. Whilst confiscation may well be draconian or penal in effect, it does not, as the House of Lords observed in R v May, at paragraph 48(1), operate as a fine. Whether an application for confiscation is or is not oppressive in the limited class of cases we are considering will fall to be considered by the trial judge individually on the facts of each case. The jurisdiction to stay may be exercised either in advance of the confiscation hearing or during it if it becomes clear that the making of an order would be oppressive for the reasons here discussed.’
Judges:
Hughes LJ, Andrew Smith J, Loraine-Smith J
Citations:
[2008] EWCA Crim 1323, [2008] Crim LR 805, [2008] FSR 34, (2008) 31(8) IPD 31051, [2009] 1 Cr App Rep (S) 60, [2008] 4 All ER 890, [2008] Lloyd’s Rep FC 526, [2008] Crim LR 805
Links:
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Berr, Regina (on the Prosecution of) v Lowe CACD 17-Feb-2009
The defendant appealed against a confiscation order, alleging abuse of process by the prosecution. He had transferred land from the company just before it went into liquidation, and admitted the offence under the 1986 Act. He complained that the . .
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 . .
Cited – Waya, Regina v SC 14-Nov-2012
The defendant appealed against confiscation orders made under the 2002 Act. He had bought a flat with a substantial deposit from his own resources, and the balance from a lender. That lender was repaid after he took a replacement loan. He was later . .
Lists of cited by and citing cases may be incomplete.
Criminal Sentencing
Updated: 19 September 2022; Ref: scu.270325