Paulet, R.

Where employment is obtained by a false representation that the employee is entitled to work in the United Kingdom, the representation may continue throughout the employment. Earnings received while it remains uncorrected may therefore constitute benefit from the criminal conduct for confiscation purposes.

A confiscation application may exceptionally be oppressive and an abuse of process. The jurisdiction is to be exercised with great circumspection and must not undermine the statutory confiscation scheme on a case-by-case basis.

The appellant pleaded guilty at Luton Crown Court to deception offences arising from false documents used to obtain employment, together with offences concerning identity documents and driving. He was sentenced to imprisonment and made subject to a confiscation order based on earnings from the employment. The judgment describes the order inconsistently as £21,949.60 and £29,949.60.

He appealed against confiscation. He contended that wages paid for work actually performed were too remote from his deception to be benefit from criminal conduct, or that confiscation would be oppressive and an abuse of process. The Crown relied on R v Carter and Others [2006] EWCA Crim 416. The central issue was whether earnings obtained and retained through a continuing false representation could be confiscated, and whether the proceedings could nevertheless be abusive.

1. The appeal was adjourned. The court did not determine whether this confiscation order was oppressive or abusive. It directed that the appeal be restored promptly after the Director of Public Prosecutions had decided whether to issue relevant guidance.
2. The appellant's primary contention that his earnings were too remote from his deception could not succeed in this court. In R v Carter and Others [2006] EWCA Crim 416, the court had treated a false representation of entitlement to work as continuing throughout employment where its correction would have ended that employment. The present court regarded that authority as decisive against the primary submission.
3. There may nevertheless be limited and exceptional cases in which seeking confiscation is oppressive and constitutes an abuse of process. The possible categories are not closed. Examples may include voluntary repayment to a victim, a minimal true benefit producing a grossly disproportionate order, undue delay, or proceedings inconsistent with an earlier undertaking. The court also identified a possible case involving an employee entitled to work whose original dishonest application had long ceased to affect satisfactory employment.
4. The abuse jurisdiction must be exercised with great circumspection. It cannot be used to undermine the statutory confiscation regime generally. The court considered that guidance under section 10 of the Prosecution of Offences Act 1985 could promote consistent decisions and avoid seriously disproportionate results. Absent bad faith in the broad sense, a prosecutor's decision to commence confiscation proceedings would not be amenable to judicial review, but the court's abuse-of-process jurisdiction would remain.

• Court of Appeal (Criminal Division) — the appeal against the confiscation order was adjourned pending an indication from the Director of Public Prosecutions about guidance under section 10 of the Prosecution of Offences Act 1985.
• Crown Court at Luton — following guilty pleas, the appellant was sentenced and a confiscation order was made. No citation for that decision is stated in the judgment.