Jannaway, R. v

Under the unamended Criminal Justice Act 1988, the discretion to make a confiscation order is general. Its primary purpose is to strip offenders of criminal benefit and protect third-party interests, rather than precisely calculate net benefit. However, the court can and should take account of actual repayment to a victim.

A repayment made by a relative remains material, although its source and the offender’s continuing financial position must be considered. The court should not discourage relatives from helping to reimburse victims. Where parties have agreed the amount of measurable pecuniary advantage, the court cannot assume additional measurable benefits without allegation, investigation and quantification.

The appellant pleaded guilty at Guildford Crown Court to obtaining council-tax relief and jobseeker’s allowance by deception. He asked for 365 similar offences to be taken into consideration. His father paid £81,819.24 to cover the benefit losses before sentence, and the sentencing recorder took that payment into account.

HHJ Bassingthwaighte later made a confiscation order of £118,660.69 under section 71 of the unamended Criminal Justice Act 1988. The order included £38,000 representing an increase in the value of the family home and the unlawfully obtained benefit payments. The appeal concerned the benefit-payment element and raised whether, and to what extent, the father’s repayment should affect the confiscation order.

1. Appeal allowed. The confiscation order was reduced from £118,660.69 to £78,000. The reduction preserved the unchallenged £38,000 increase in property value and approximately half of the agreed benefit payments.

2. Lord Justice Mance, delivering the judgment of the court, held that the general discretion in section 71(1) of the unamended Criminal Justice Act 1988 permitted, and required, the court to take account of benefits actually repaid to the victim. The statutory scheme principally strips offenders of benefit and protects third-party interests. It does not require a strict calculation of net benefit. Nevertheless, actual reimbursement is a relevant consideration in deciding what order is appropriate.

3. The repayment’s source mattered in both directions. The appellant had not yet borne its financial impact, continued to have the benefit of his funds and had no established interest liability to his father. Conversely, an order should not remove the incentive for relatives to assist in reimbursing victims. The appellant’s lifestyle benefits from fraud also counted against a full reduction, although his sentence had already taken some account of that lifestyle.

4. The judge had erred by relying on supposed additional measurable financial benefits when the parties had agreed the total pecuniary advantages and the Crown had neither alleged nor investigated further advantages. The court also considered that the judge had failed to address the relevance of the repayment in exercising the statutory discretion.

5. The court distinguished the uncompensated-victim context in Williams [2001] 1 CAR (S) 500. It drew support from Layode and Rees, and treated the stringent confiscation principles in Smith [2001] UKHL 68 as compatible with a properly exercised discretion under the earlier legislation.

• Court of Appeal (Criminal Division): Allowed the appeal and reduced the confiscation order to £78,000.
• Guildford Crown Court: HHJ Bassingthwaighte made a confiscation order of £118,660.69 under section 71 of the unamended Criminal Justice Act 1988.