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25 April 2019 / by / in

The Long Arm of the Law – s.22 POCA Applications

The “draconian” nature of the confiscation regime has consistently drawn criticism from across the legal spectrum. The Court of Appeal has recently opined on the reach of the rarely used power of the court to vary a confiscation order where a defendant has acquired substantial assets from perfectly legitimate sources some years after the imposition of the original order.

In R v S (2019) EWCA Crim 569, the defendant had originally been made the subject of an order of £8,550. This had been calculated on the basis that although his overall benefit from a series of drugs offences had been assessed at £189,621.36, his available assets were only £8,550. However, following his release from prison, he had set up a successful business which had enabled him to purchase property for himself and his wife. This prompted an application by the Crown for a variation of the original order. Such an application requires the court to apply two basic criteria:

(1) It believes the order to be just;

(2) The order does not exceed the size of the original benefit figure.

In the present case, the defendant had not only built up his wealth from legitimate business activity, but he had also operated for some time as a registered informant in relation to which he had received £27,000 in payments. His counsel asked the sentencing judge to take these matters into account along with the significant delay in concluding the application. He argued that in these exceptional circumstances the judge should refuse the application entirely or at the very least apply significant discount of between 75 and 80%.

In the event, the judge applied the following principles in concluding that of the unsatisfied benefit figure (£181,071.36), the available amount assessed against the defendant should be increased to £108,642.81. This was a discount of 40%.

(a) In arriving at a “just” order the court has to counter-balance the public interest in the rehabilitation of offenders with the principle that criminals should not benefit financially from their crimes. Ultimately, the latter principle should be the prevailing consideration;

(b) There is no precedent to determine how much of a discount should be given to a “co-operating” informant, but similar principles that would be applied to the calculation of a prison term would be applicable;

(c) Whilst inordinate delay is a factor to be taken into account, it does not prohibit the exercise of the court’s discretion. In the present case 11 years was not deemed to be any impediment.

The case provides a salutary reminder that defendants should not be lulled into a false sense of security and assume that once a confiscation order has been settled that will be the end of the matter. Even a defendant who has subsequently led a totally law-abiding existence and provided covert intelligence to the police cannot expect to have his debt to society totally expunged.

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Stephen Sharp

Steve is a highly experienced criminal lawyer specialising in white collar and business crime for over 25 years. He has defended in cases brought by the Serious Fraud Office (SFO), HM Revenue and Customs, Department of Business Innovation and Skills (BIS), the Economic Crime Unit (ECU), NHS Counter-Fraud Service and the Crown Prosecution Service (CPS).