Each defendant appealed against confiscation orders made when the sentence imposed was an absolute or conditional discharge. They said that Clarke made such orders unlawful.
Held: The decision in Clarke was a difficult limitation on the court’s discretion: ‘there are cases in which the combination of an order for discharge with a confiscation order represents an appropriate sentencing decision. Indeed, whatever other order may be appropriate, there can be nothing remarkable about the proposition that an individual convicted of acquisitive crime should be deprived of its benefit. In broad general terms, therefore, the principle identified in Clarke is, to put it no higher, surprising. The question is whether the legislative structures require it.’
The court emphasised the importance in European and British law of the statutory regime of the confiscation of the proceeds of crime, and it was not possible to say that the the British law inadequately implement the Framework Decision.
The statute required the confiscation order to be made first: ‘ Section 13 (4) makes clear that, subject to exceptions, where a confiscation order has been imposed ‘the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant.’ Section 13 was intended to reproduce the effect of existing legislation, and no alteration was intended. Nevertheless Clarke was binding, and the Court certified a point of law of general importance for the Supreme Court in terms to be agreed.
Judges:
Lord Judge LCJ, Goldring LJ, rafferty J, Wilkie J, King J
Citations:
[2010] EWCA Crim 1575, [2010] 2 Cr App R 25, [2010] Crim LR 787, [2010] 3 WLR 1694, [2011] QB 398
Links:
Statutes:
Council Framework Decision, 26th June 2001, On Money Laundering, the Identification, Tracing, Freezing, Seizing and Confiscation of Instrumentalities and the Proceeds of Crime, Proceeds of Crime Act 2002, Drug Trafficking Offences Act 1986, Drug Trafficking Act 1994 2(6)
Jurisdiction:
England and Wales
Citing:
Criticised – Clarke v Regina CACD 12-Jun-2009
The defendant had pleaded guilty to concealing criminal property. He was conditionally discharged but also made subject to a confiscation order. He appealed saying that one could not be made if only a conditional discharge was imposed.
Held: . .
Cited – Criminal proceedings against Pupino ECJ 16-Jun-2005
ECJ (Grand Chamber) Police and judicial cooperation in criminal matters – Articles 34 EU and 35 EU – Framework Decision 2001/220/JHA – Standing of victims in criminal proceedings – Protection of vulnerable . .
Cited – Wilkinson, Regina v CACD 11-Dec-2009
The court considered the effect of the decision in Clarke, and concluded that if the court is not permitted to make a confiscation order together with an order for conditional discharge, it may then become necessary to impose a different, more . .
Cited – Dabas v High Court of Justice, Madrid HL 28-Feb-2007
The defendant sought to appeal his extradition to Spain to face terrorism charges. He complained that the certificate required under the 2003 Act could not be the European arrest warrant itself, that the offence did not satisfy the double . .
Cited – Regina v Savage 1983
The Court quashed a deprivation order made against a defendant who had been conditionally discharged: ‘On March 28, 1983 at the Crown Court in Manchester, the appellant pleaded guilty to three counts of handling stolen goods and was sentenced to a . .
Cited – Regina v Young 1990
Certain punitive orders may not be made in conjunction with a conditional discharge because if punishment is inexpedient, it is inappropriate to couple it with a punitive order. . .
Cited by:
Appeal from – Varma, Regina v SC 10-Oct-2012
The defendant had been convicted of offences under the 1979 Act, but then conditionally discharged. He had appealed against a confiscation order. The prosecutor now appealed against an order quashing the confiscation.
Held: The appeal was . .
Lists of cited by and citing cases may be incomplete.
Criminal Sentencing
Updated: 09 February 2022; Ref: scu.420405
