Clarke v R.

A Crown Court cannot make a confiscation order where it gives an offender an absolute or conditional discharge. A discharge under Powers of Criminal Courts (Sentencing) Act 2000, section 12, follows a finding that punishment is inexpedient. Confiscation is a penalty, and section 12(7) expressly permits certain associated orders but not confiscation. The omission is decisive. Section 14 does not itself prevent confiscation proceedings, since they form part of sentencing, but it does not displace the section 12 prohibition.

The appellant pleaded guilty in the Crown Court to concealing criminal property contrary to section 327 of the Proceeds of Crime Act 2002. He received a two-year conditional discharge under section 12 of the Powers of Criminal Courts (Sentencing) Act 2000.

Despite that disposal, the sentencing judge made a confiscation order for £1,500 under section 6 of the Proceeds of Crime Act 2002. The appeal concerned whether a Crown Court has power to make a confiscation order following conviction where it imposes an absolute or conditional discharge for the offence.

1. Appeal allowed. The confiscation order was quashed. The court held that a Crown Court has no power to couple a confiscation order with an absolute or conditional discharge for the same offence.

2. Section 14(1) of the Powers of Criminal Courts (Sentencing) Act 2000 did not itself bar confiscation. The conviction remains effective for the purposes of the proceedings in which the discharge is made. Confiscation proceedings under section 6 of the Proceeds of Crime Act 2002 form part of sentencing. The court treated the explanation in Longworth [2006] UKHL 1 as consistent with that conclusion, while distinguishing its application to a statutory notification duty arising independently of the sentencing proceedings.

3. Section 12 was decisive. An absolute or conditional discharge is available only where the court considers punishment inexpedient. A confiscation order is a penalty: confiscation proceedings are part of sentencing and the order has punitive consequences, as recognised in R. v Briggs-Price [2009] UKHL 19. The earlier decisions in Savage and Young established that a punitive order is inconsistent with such a discharge unless legislation permits the combination.

4. Section 12(7) expressly preserves powers to order costs, disqualification, compensation, deprivation and restitution. It does not mention confiscation. The legislative history showed that Parliament had specifically addressed which punitive or consequential orders could accompany a discharge, including while amending confiscation legislation. The absence of an express exception for confiscation was therefore telling. The otherwise mandatory terms of section 6 of the Proceeds of Crime Act 2002 did not alter that result.

5. In the rare case where an absolute or conditional discharge may be contemplated, the prudent course is to determine sentence before making a confiscation order. That sequencing is compatible with section 13 of the Proceeds of Crime Act 2002.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the confiscation order: [2009] EWCA Crim 1074.
• Crown Court at Manchester: Following the appellant’s guilty plea, HH Judge Lyon imposed a two-year conditional discharge and later made a £1,500 confiscation order.