The House of Lords and Court of Appeal have recently handed down important judgments on the issue of confiscation. In R v May [2008] UKHL 28, Jennings v CPS [2008] UKHL 29, and R v Green [2008] UKHL 30, the House carried out a basic analysis of the law and identified the three stages through which every enquiry must proceed:

  • Has the defendant benefited from the relevant criminal conduct?
  • If so, what is the value of the benefit he has so obtained? And
  • What part of that sum is ­recoverable by way of realisable assets?

The key issue was to identify the property obtained. Where co-defendants have jointly received the criminal property, each is liable for the full value subject to their realisable assets. However, mere couriers or custodians or very minor contributors, rewarded by a specific fee and having no interest in the property or proceeds of sale, were unlikely to be found to have obtained the property.

A defendant ordinarily obtained property if in law he owned it, solely or jointly, which implied a power of disposition or control. ‘Obtains’ means that the defendant should have contributed to a non-trivial extent to the getting of the property.

These decisions clarify the law, although every case will depend on its own facts. The clarification is important because, once an application is made, a court cannot refuse to make a confiscation order (R v Hockney [2008] Crim LR 59). The decision on couriers will require a careful re-examination of cases such as R v Stanley [2008] Crim LR 231, where a lorry driver was paid a fee of £100 for collecting goods of whose true nature he was unaware.

However, the law remains draconian. The benefit for confiscation purposes is not the profit from a transaction but the turnover of the relevant business when using a prohibited name. The rules on avoiding serious injustice applied only to the making of the statutory assumptions and not to the making of the order itself (R v Neuberg [2008] Crim LR 64). However, when a crime is committed by a partnership, assets which belong to individual partners and are not partnership assets could not be subject to confiscation (R v W Stevenson & Sons [2008] EWCA Crim 273).

Furthermore, courts must be careful to avoid double-counting. Where property was both acquired and sold, it is the higher of the acquisition or disposal value that is used and not the total of the two (R v X [2007] EWCA Crim 2498).

Solicitors must exercise great care when advising clients on issues going to confiscation and the repayment of monies improperly obtained, which can be a major head of mitigation. In R v Farquhar [2008] EWCA Crim 806, the defendant obtained £26,000 in benefits dishonestly but repaid the total amount due. However, in confiscation proceedings the court had to make an order for the total amount again unless either there were insufficient realisable assets or there was an abuse (an indication by the Crown that no confiscation order would be sought).

It was this aspect that has received important further consideration by the Court of Appeal in R v Morgan and Bygrave [2008] EWCA Crim 1323. The court recognised the public interest in encouraging the voluntary repayment of monies improperly obtained. It held that it would be oppressive to require double payment in the following circumstances:

  • All offences cause loss to identifiable losers;
  • The benefit is limited to those crimes;
  • There are no civil proceedings; and
  • The loss has been repaid or the full amount is immediately available for payment.

In such circumstances, an application for a confiscation order would be an abuse. However, it will not be oppressive when:

  • The defendant has received additional profit from the crime;
  • The statutory assumptions identify an additional benefit; and
  • Repayment is uncertain.

It should be remembered that, if civil proceedings have been issued, the court’s duty to make a confiscation order becomes a power only.

Dangerous offenders

In considering whether the necessary significant risks existed following conviction of a specified or serious specified offence, there was no requirement for there to be any nexus between evidence material to dangerousness and the offence itself. In R v Green [2008] Crim LR 66, the conviction was for causing death by careless driving while intoxicated, but the defendant had an earlier conviction for wounding. It was properly taken into account in determining whether there was a significant risk of a further specified offence causing serious harm to a member of the public. However, imprisonment for public protection was inappropriate where the risk of harm from downloading child pornography was uncertain and indirect. Mere possession of child pornography does not of itself create a significant risk of serious harm from a future specified offence. In addition, the court noted that the making of a sexual offences prevention order will be a relevant consideration in deciding whether imprisonment for public protection was still required. In this case, a fixed term of sentence was substituted (R v Terrell [2008] Crim LR 320).

The Criminal Justice and Immigration Act 2008 makes significant changes to the sentencing regime for dangerous offenders, which applies to those sentenced on or after 14 July 2008. Sentences of imprisonment and detention for public protection will only be available if either:

  • At the time of this offence the offender has already been convicted of an offence set out in schedule 15A to the Criminal Justice Act 2003; or
  • The notional minimum term ­(ignoring time served) would be at least two years.

The sentence, even in these circumstances, becomes discretionary. The presumption of dangerousness for those with a previous conviction will be removed.

Detention for public protection is similarly amended, save that only the second bullet point above applies to young offenders.

Similarly extended sentences are only available if, for adults, either bullet point applies and, for youths, if the second does. Again, the sentence becomes discretionary and extended sentences are available for serious specified offences.

Breach proceedings

Where a client was remanded in custody pending the preparation of reports, or for any other reason, but then given a community order which was breached, a court must be invited to allow that time in custody to count, under the provisions of schedule 240 to the Criminal Justice Act 2003, towards any sentence that is imposed on the breach (R v Stickley [2008] Crim LR 308).

Exactly the same position arises in relation to the breach of suspended prison sentences imposed for an offence committed on or after 5 April 2005, where time was, before the original sentence, spent on remand.