Davies, R. v

In fixing a confiscation order, the court must use a reliable professional valuation of property at the date of the confiscation hearing and must deduct the costs necessarily incurred in its sale. Later falls in the value of property or later shortfalls on realisation are matters for variation procedures or a certificate of inadequacy, not ordinarily for adjustment on appeal.

A reduction in a confiscation order does not itself require a reduction in the term of imprisonment in default where the revised sum remains within the same statutory band under the Powers of Criminal Courts (Sentencing) Act. A prosecution costs order should be set aside where the offender lacks the means to pay it within a reasonable period.

The appellant pleaded guilty at Bristol Crown Court to nine counts of theft from his employer. Seventy-two further thefts were taken into consideration. He received concurrent sentences of two years’ imprisonment, a confiscation order of £156,000, a two-year consecutive term in default, and a prosecution costs order of £10,000.

He appealed against the custodial sentence, the amount of the confiscation order, and the costs order. The principal issues were whether the property valuation and sale costs had been correctly reflected in the order, whether later realisation values could be considered on appeal, and whether the costs order was payable within a reasonable period.

1. The appeal was allowed in part. The concurrent sentences of two years’ imprisonment for theft were not manifestly excessive, having regard to the scale and duration of the offending, the abuse of the appellant’s position of trust, the offences taken into consideration, and the late guilty plea.

2. The confiscation order had been calculated using an over-valuation of the appellant’s interest in the family home. A confiscation court should have an up-to-date professional valuation: Lemmon (1991) 13 Cr.App.R (S) 66 supported that requirement. The relevant value was the value at the April 2004 confiscation hearing. A later December valuation could not be substituted merely because the market had fallen.

3. The court adopted £275,000 as the correct April valuation. It also held that estate agents’ fees, VAT, solicitors’ costs, VAT and the relevant disbursement had to be deducted in calculating the appellant’s beneficial interest. That conclusion was supported by Kramer (1992) 13 Cr.App.R (S) 390 and Lemmon. The appellant’s share of the home was therefore £75,241 and the confiscation order was reduced to £105,500.

4. The court declined to adjust the order for later vehicle and share realisations. Such subsequent changes were for an application to the Magistrates’ Court and, if necessary, a certificate of inadequacy.

5. The £10,000 prosecution costs order was set aside. Applying R v Nottingham JJ, ex parte Fohman (1987) 84 Cr.App.R 316 and R v Hapes (1989) 11 Cr.App.R (S) 38, the judge had erred because the appellant lacked the means to pay within a reasonable period.

6. The two-year term of imprisonment in default remained. Although the confiscation order was reduced, it was still within the same statutory band in section 139 of the Powers of Criminal Courts (Sentencing) Act, and no automatic reduction in the default term followed.

• Court of Appeal (Criminal Division): Allowed the sentence appeal in part. It reduced the confiscation order and set aside the prosecution costs order.
• Crown Court at Bristol: On 26 April 2004, imposed concurrent two-year sentences for theft, a confiscation order, a consecutive default term, and prosecution costs.