Regina v Fields and others [2013] EWCA Crim 2042; [2013] WLR (D) 440
It was inevitable that, following the ruling in R v Waya [2013] 1 AC 294, the Court of Appeal would face the challenge of hearing appeals concerning proportionality and joint benefits.
One such appeal decided on in November 2013 was R v Fields and others. This was a joint benefit case, and the main two points were summarized in the judgment in the following way:
- Where two or more conspirators have been judged to have been co-principal conspirators who have jointly obtained the benefit of the proceeds of the conspiracy, is the benefit obtained by each of them, for the purposes of the POCA 2002, to be valued in a sum equalling the full amount of the proceeds of the conspiracy? Or – as the appellants argued – is the value of the benefit to be attributed to them in rateable shares?
- Alternatively, if the benefit is properly assessed in the whole amount with regard to each of them, and assuming that each has realisable assets matching or exceeding the benefit, is – as the appellants argued – the amount of the confiscation order to be apportioned between them in each case rateably in order to avoid a disproportionate outcome?
The Court posed the question: is there anything in Waya to displace what has been settled law as to the ascertainment and valuation of benefit in cases where there has been a finding of joint benefit?
The Court concluded there is nothing to be found in the decision of Waya to support the appellants’ arguments. Waya was not a case concerned with property jointly obtained. It was a case where the defendant had acquired a property with the partial assistance of a loan secured by a charge procured by fraudulent representation. The Court concluded that was a wholly different situation from the present case and it does not have any bearing on the present question of attribution or apportionment of benefit as such.
The Court concluded that, where there has been a finding of jointly obtained benefit, that benefit is to be valued in the whole amount of the property so obtained in respect of each individual defendant. There is no room in such a case of joint benefit for the ascription of ‘beneficial shares’ to each of the defendants for the purpose of valuing their benefit. The Court were clear in their findings that if apportionment is appropriate at any stage, that should happen when determining the recoverable amount in which the Confiscation Order is made in each case at the final stage.
Consequently, the Court of Appeal firmly drew the conclusion in joint benefit cases that each defendant had been found to have obtained the joint benefit and so was not required by a Confiscation Order to disgorge any benefit he had not obtained. This was consistent with R v Waya and other recent authorities, which overall indicated that a Confiscation Order made in the amount matching the correctness of the benefit was not to be classified as disproportionate. The Court went on that if a Confiscation Order was apportioned at this stage there was a real risk that ultimately the Order would not be satisfied in full. It would therefore be unsatisfactory in a negation of the finding of joint benefit for one defendant to have avoided paying up to the full amount of the proceeds obtained simply by reason of the other defendant thereafter failing to make any payments. The object of the 2002 Act as to the making of Confiscation Orders, put simply, was not geared only to recouping the loss of the loser; rather the aim was geared towards removing from criminals the proceeds of their crimes.
Practitioners should be familiar with this and other authorities, and can expect the arguments to run and run and quite probably be argued in higher courts in the not too distant future.
Regina v Padda [2013] EWCA Crim 2330; [2013] WLR (D) 496
On 12 December 2013, the Court of Appeal decided that Section 22(4)(a) of the Proceeds of Crime Act preserved an obligation on the Court and a discretion to make a Confiscation Order that is just, and in so doing it could take into account all relevant circumstances in favour of maximizing the recovery of the proceeds of crime, even if recovery would then take place from legitimately acquired assets.
In the matter of R v Padda, the Court originally made a Confiscation Order of £9,520 on 22 September 2006. When the Court made the original Order, it did so after consideration of the available realisable assets at the time that Order was made. In May 2012 the Court made a Restraint Order against the defendant and his company in order to secure funds to enable a reconsideration of the amount available for a revised Confiscation Order of Section 22 of the Proceeds of Crime Act 2002. The Court, during the initial Confiscation Hearing, had concluded the defendant had benefited from his offending to the extent of £156,226.74.
Clearly, there had been a material change in the appellant’s financial circumstances from 2006 until 2012. The Court concluded that the judge making the Orders could take all relevant circumstances into account when deciding the issue, and had to take into account the legislative policy in favour of maximizing the recovery of the proceeds of crime even from legitimately acquired assets as was argued in this case. The judge at the Court of Appeal concluded he had taken the proper course in the Order he made and his Order was neither wrong in principle nor manifestly excessive.
This case should be considered carefully by all practitioners when advising their clients as to the nature of Orders that are made at the time the original confiscation proceedings take place, and that in certain circumstances Courts can make further Orders such as Restraint Orders or further findings in relation to recoverable property many years after the original Order was made, even if monies made subsequent to criminal activity taking place and subsequent to the original Confiscation Order being made were obtained legitimately by the defendant.
We at Lewis Nedas are committed to taking a proactive approach to all confiscation matters and we pride ourselves on the many outstanding outcomes achieved for clients in recent times. If you are facing a confiscation enquiry, whether it be matters relating directly to the above or any issue relating to this area of specialist work, do not hesitate to contact us on 020 7387 2032 or complete our online enquiry form here.
