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 allowed. The answer lay in the important distinction between situations where the court was exercising a discretion, and where they were acting under a duty imposed upon them. The 2000 Act preserved the court’s powers to impose several forms of ancillary orders on granting a discharge, but the list did not include confiscation orders, but the power, if it existed must be derived from the 2002 Act. That Act had preconditions, but created no bar against a confiscation order, and indeed imposed a duty in that behalf. The question remained as to whether section 12 of the 2000 Act prevents the Court making such an order. The court in Clarke had held that ‘there is a general principle or rule of law that no punitive order may be made in conjunction with an absolute or conditional discharge unless (a) it is listed in section 12(7) of the 2000 Act’ However: ‘ the fact that there is no reference to a confiscation order in section 12(7) of the 2000 Act does not lead to the conclusion that Parliament intended that such an order could not stand with an absolute or conditional discharge.’
Lord Clarke said: ‘on the true construction of the 2002 Act is that the court remains under a duty to proceed under section 6 and, subject to the express terms of the section, must make an order. In the case in which the section 6 proceedings take place before the defendant is sentenced . . I can see no basis upon which it could be submitted to the court that no confiscation order should be made because it would be appropriate to give the defendant an absolute or conditional discharge. ‘
Lord Phillips added: ‘ Where the Customs seize goods that a defendant is seeking to bring into the country without paying duty it would be open to them to confiscate the goods, to prosecute the defendant and to exact the duty payable on them. It is, however, their practice, where they prosecute in such circumstances, not to seek to exact payment of the duty but to initiate confiscation proceedings in the amount of the duty payable instead. That is what they did in the case of Mr Varma. This practice may well be convenient, but I doubt whether it is legitimate.’
Lord Phillips, Lord Mance, Lord Clarke, Lord Dyson, Lord Reed
[2012] UKSC 42, UKSC 2010/0156, [2012] WLR (D) 270, [2013] Lloyd’s Rep FC 89, [2013] 1 All ER 129, [2013] Crim LR 166, [2013] 2 Costs LO 224, [2013] 1 Cr App R 8, [2012] 3 WLR 776, [2013] 1 AC 463
Bailii, SC Summary, SC, Bailii Summary, WLRD
Customs and Excise Management Act 1979 170(2)(a), Powers of Criminal Courts (Sentencing) Act 2000 12, Proceeds of Crime Act 2002 6 13 14 15
England and Wales
Citing:
Cited – Hockey, Regina v CACD 12-Jun-2007
Where, as in common practice, the court proceeds to sentence before the confiscation proceedings under section 6 are held, the duty of the court to proceed under section 6 remains alive. . .
Appeal from – Regina v Magro CACD 8-Jul-2010
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 . .
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 – Taylor and another v Saycell KBD 1950
The respondents had been convicted by the magistrates of using a vehicle without insurance. They were fined and disqualified from holding a licence for 12 months. The Crown Court quashed their fines and disqualifications and substituted conditional . .
Cited – Dennis v Tame QBD 1954
The defendant had been given a conditional discharge, which had the effect under section 12(2) of avoiding disqualification. The prosecutor appealed by case stated.
Held: The conditional discharge was set aside. The Divisional Court had said . .
Cited – Regina v Smith (David Cadnam) HL 13-Dec-2001
Smith had bought a motor vessel, The Vertine, with andpound;55,000 provided by his co-defendant, John Marriott. In the words of the judge when imposing sentence, the respondent allowed himself to be used as Marriott’s ship owner and captain. The . .
Cited by:
Cited – Harvey, Regina v SC 16-Dec-2015
Police had discovered quantities of stolen goods at the appellant’s business premises. He was convicted of receiving stolen goods, and confiscation order made. He now appealed from the inclusion in that order of sums of VAT which had already been . .
Lists of cited by and citing cases may be incomplete.
Criminal Sentencing, Customs and Excise
Updated: 09 November 2021; Ref: scu.464769