Silvester, R v

Where a victim has instituted, or intends to institute, civil proceedings for loss caused by relevant criminal conduct, Criminal Justice Act 1988, section 71(1C), changes the otherwise mandatory confiscation regime into a discretion. The discretion must not be treated as requiring recovery of the maximum available sum in every case.

The court must focus on the statutory language and may properly leave a victim to pursue civil recovery where that course is available. Relevant considerations include whether the benefit figure represents all offending, the number of victims, and the prospect of civil recovery from available assets. Confiscation is directed to depriving an offender of criminal benefit, rather than operating as a fine or enriching the Crown.

The appellant, a bank manager, pleaded guilty to theft and deception involving the theft of £166,000 from three elderly customers. The bank reimbursed the customers. At Lincoln Crown Court, the judge made a confiscation order for £182,996.66 and ordered costs.

The prosecutor stated that no compensation order was sought, but did not tell the judge that the bank intended to bring civil proceedings. The bank later obtained a civil judgment for its loss, interest and costs. The appellant had already paid the confiscation order, and his available assets had subsequently altered following divorce proceedings.

The appeal concerned whether the sentencing judge, had he known of the intended civil claim, would have had a discretion under Criminal Justice Act 1988, section 71(1C), and how this court should re-sentence the appellant.

1. Appeal allowed. The confiscation order was made on an incomplete factual basis. Had the judge known that the bank intended to institute civil proceedings, section 71(1C) of the Criminal Justice Act 1988 would have given him a power, rather than a duty, to make a confiscation order and to fix its amount.

2. The statutory discretion was not fettered by an obligation to take as much as possible from the offender. Confiscation ordinarily deprives an offender of the proceeds of crime, but it does not operate as a fine. The court should focus closely on the statutory language, consistently with the guidance in May [2008] UKHL 28, rather than impose judicial glosses upon it.

3. It would have been an unobjectionable exercise of the sentencing judge’s discretion to leave the bank to its chosen civil remedy. The benefit figure represented the full value of the offending, rather than an assumed criminal lifestyle benefit. There was one effective loser, the bank, and it intended to pursue and was capable of pursuing civil recovery.

4. The Court of Appeal could not properly cure the error by adding a compensation order. That would be likely to deal more severely with the appellant for the purposes of section 11(3) of the Criminal Appeal Act 1968. Further, there was no evidence establishing that the asserted pension fund was a presently realisable asset.

5. The confiscation order was quashed. Its proceeds were not to be returned to the appellant for 42 days after hand-down, allowing the bank to take any advised step to secure its civil judgment. The court had no power under section 89 of the Act to award interest or indexation on the sum paid. There was liberty to apply.

• Court of Appeal (Criminal Division): Allowed the appeal from Lincoln Crown Court, quashed the confiscation order, and delayed return of the paid sum for 42 days.
• Lincoln Crown Court: His Honour Judge Machin made a confiscation order of £182,996.66 following the appellant’s convictions.