Farquhar, R v

Where the statutory conditions for confiscation are met, Criminal Justice Act 1988 section 71 requires a confiscation order. The court retains only its jurisdiction to stay proceedings for abuse of process.

Benefit is assessed when the offender obtains the property. Later dissipation, transfer, destruction or voluntary repayment does not reduce that benefit. Compensation and confiscation serve distinct purposes. An offender with sufficient means may therefore be required to meet both, even where that exceeds the victim’s loss. A voluntary repayment will affect confiscation only where an agreement or other circumstances make continued proceedings abusive.

The appellant pleaded guilty in the magistrates’ court to three offences of making false statements to obtain social-security benefits. He had received £26,644.33 while failing to disclose capital which would have reduced or ended his entitlement.

Before sentence, he voluntarily repaid that sum. The Crown Court later made a confiscation order for the same amount, with imprisonment in default. The appellant appealed only against that order.

The central issue was whether the repayment made it unjust, or unlawful under Article 6, to require confiscation in addition to compensation.

1. Appeal dismissed. The confiscation order was correctly and justly made.

2. The court rejected the Article 6 challenge. Following R v Benjafield & Ors [2003] 1 AC 1099, confiscation under Part 4 of the Criminal Justice Act 1988 forms part of sentencing. The statutory scheme pursues the legitimate public aim of depriving offenders of criminal proceeds and is proportionate.

3. Section 71 imposed a duty to make an order once its requirements were satisfied. The absence of a general merits discretion did not make the scheme non-compliant. As explained in R v Mahmood & Shahin [2006] 1 Cr App R(S) 570, the court may nevertheless stay proceedings where their continuation would be an abuse of process.

4. Under section 71(4), benefit is fixed when property is obtained. Later events, including a voluntary repayment, do not alter the benefit obtained. The court followed the authorities that treat later destruction, transfer, dissipation and police intervention as irrelevant to that question.

5. The repayment satisfied claims for compensation, but it did not discharge the separate liability to confiscation. Compensation compensates those out of pocket; confiscation penalises the offender by depriving criminal benefit. Double payment is not, without more, abusive where the offender has the means to satisfy both orders.

6. An agreement governing the treatment of an early repayment might, depending on its terms and the facts, raise an abuse issue if the Crown sought to depart from it. There was no such agreement here. Section 71(1C) was also inapplicable because no victim had instituted, or intended to institute, civil proceedings.

• Court of Appeal (Criminal Division): dismissed the appeal against the confiscation order.
• Crown Court at Weymouth and Dorchester: on 20 September 2007, His Honour Judge Beashel made a confiscation order for £26,644.33 following the appellant’s conviction and sentence.
• West Dorset Magistrates’ Court: on 23 March 2007, the appellant pleaded guilty to three offences of making a false statement to obtain benefit.