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Proceeds of Crime Act success

By Tim Walker  |  28.06.2019

Under s.22 of the Proceeds of Crime Act 2002 (‘PoCA’), the Court has a wide discretion to increase a confiscation order to an amount it considers ‘just’. This statutory provision is routinely used by the CPS years after the conclusion of the substantive criminal proceedings.

Our client ‘S’ appeared in the Crown Court following a prosecution application to increase his original confiscation order made in 2007 by over £100k after the discover that he had new assets available to satisfy his benefit figure.

We argued that the court ought not to make an upward variation due to the extensive assistance S had provided to the police as a Covert Human Intelligence Source following his release from prison. In addition, we highlighted the considerable time that had elapsed since the imposition of the original order.

The Recorder in the Crown Court balanced the assistance provided and length of time that had passed against the draconian PoCA legislative aims. In exercising his discretion, the Recorder reduced by 40% the amount determined to be now ‘available’ by our client.

On appeal, the Court of Appeal confirmed:

“The weight to be attached to such matters as delay in bringing an application and assistance to the prosecution is for the Crown Court; and this Court will not interfere with such findings unless a decision either involves an error of law or principle; or falls outside the judge’s discretion, in that no Court properly directing itself in accordance with the law could have come to such a conclusion; or is fundamentally lacking in any underlying reasoning.”

The appellant court’s approval of the Recorder’s approach means that S is the first reported case in which a reduction to the available amount under s.22 has been based, at least in part, due to the length of time since the original order was made. The lead authorities (Padda [2014] 2 Cr App R (s) 140; and re Peacock [2012] UKSC 5) failed in such arguments and the time that had elapsed in S was longer than in these previous cases (6 years and 10 years respectively).

Whilst the assistance provided by S to the police is unlikely to feature regularly in such case, lengthy elapses of time are a common feature of these CPS applications which serves to underline the importance of this new authority, R v S [2019] EWCA Crim 569.

David Bloom was the solicitor with conduct of this matter. David specialises in confiscation proceedings and white collar crime. Please contact him if you have any queries.

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