Nield, R. v

Full repayment of a victim before confiscation proceedings does not, without more, displace the mandatory confiscation regime under Proceeds of Crime Act 2002. The limited discretion in section 6(6) applies where the victim has started, or intends to start, proceedings for loss; it cannot be extended by analogy to completed voluntary repayment.

Confiscation and compensation are separate processes. Confiscation is a freestanding punitive measure assessed by reference to benefit and available assets. Statutory provisions protecting an outstanding compensation claim do not require the court to reduce confiscation where compensation has already been paid.

The appellant pleaded guilty to false accounting and other dishonesty offences arising from his misuse of his employer's funds. Before sentence, he repaid the whole loss of £10,066.73. The Crown Court nevertheless made a confiscation order for £9,500 under the Proceeds of Crime Act 2002.

On appeal, the appellant argued that repayment either made the section 6 duty discretionary by analogy with section 6(6), or made the continued confiscation proceedings an abuse of process. The central issue was whether completed repayment to the victim prevented, reduced or otherwise barred a confiscation order.

1. Appeal dismissed. Once confiscation proceedings were triggered under section 6 of the Proceeds of Crime Act 2002, the statutory framework imposed a duty to make an order. The exception in section 6(6) was confined to its stated circumstance: a victim had begun, or intended to begin, proceedings against the defendant for the relevant loss.

2. The appellant's completed repayment could not be treated as analogous to that circumstance. The legislation was tightly drawn and gave the court no discretion to enlarge section 6(6). In the absence of that exception, the court had to assess benefit and the available amount in the ordinary way under section 7.

3. A stay for abuse of process was available in principle where, after full disclosure, the Crown and defendant had agreed a restitution arrangement and confiscation proceedings unjustly sought to depart from it. The material before the court did not establish any such agreement, assurance or undertaking. Police facilitation of repayment and deferral of sentence to allow payment did not suffice. Nor was it automatically abusive to pursue confiscation merely because it could result in recovery exceeding the amount stolen: R v Mahmood and Shahin [2005] EWCA Crim. 2168.

4. Compensation under section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 and confiscation serve separate functions. Confiscation is a punitive, freestanding process, notwithstanding prior discharge of civil liabilities: Forte [2004] EWCA Crim. 3188. Section 13 of the 2002 Act specifically protects a victim where a compensation order and confiscation order cannot both be satisfied. Here there was no remaining compensation issue and no basis to conflate the two regimes.

• Court of Appeal (Criminal Division): The appeal against the confiscation order was dismissed: [2007] EWCA Crim 993.
• Crown Court at Manchester, Minshull Street: On 17 July 2006, a confiscation order of £9,500 was made under the Proceeds of Crime Act 2002.
• Crown Court at Manchester, Minshull Street: On 7 April 2006, the appellant was sentenced after pleading guilty to false accounting and other dishonesty offences.