Axworthy, R. v

A confiscation order must be proportionate to the statutory purpose of removing the pecuniary proceeds of crime. After calculating benefit, its value and the defendant’s realisable assets, the court must consider under section 6(5) whether the order would breach Article 1 of the First Protocol.

Where stolen property has been wholly restored to its owner, an order requiring payment of its value again does not remove criminal proceeds. It confers a further pecuniary benefit and is disproportionate. The recovery and intact restoration of stolen property is therefore capable of being decisive.

The appellant was convicted of theft and attempting to pervert the course of justice after falsely reporting the theft of a Motability vehicle. The vehicle was recovered in Ibiza and restored to its owner.

At Liverpool Crown Court, the judge made a confiscation order for the vehicle’s value, £22,010, and a separate compensation order for repatriation costs of £7,718. The appellant appealed the financial orders.

Following Waya [2012] UKSC 51, both parties accepted that the confiscation order should be quashed. The Crown nevertheless sought an increase in the separate compensation order. The issues were whether confiscation remained proportionate after restoration of the vehicle and whether the compensation order could be increased on the appeal.

1. The appeal was allowed. The confiscation order of £22,010, and its default term, were quashed. The court refused the Crown’s application to increase the separate compensation order, which remained £7,718.

2. The statutory assessment first identifies the defendant’s benefit, values that benefit, and values realisable assets to determine the recoverable amount. However, section 6(5) of the Proceeds of Crime Act 2002 must be read subject to the requirement of proportionality under Article 1 of the First Protocol to the European Convention.

3. Applying Waya [2012] UKSC 51, the purpose of confiscation is to remove the pecuniary proceeds of crime, rather than to impose an additional financial penalty. The appellant had acquired a benefit valued at £22,010 and had sufficient realisable assets. But the vehicle had been wholly restored to its owner. An order requiring payment of its value again would not remove proceeds and would be disproportionate.

4. Rose [2008] EWCA Crim 239 was not followed insofar as it treated recovery and intact restoration of stolen property as always irrelevant. Wilkes [2003] EWCA Crim 848 concerned general criminal conduct and did not govern this case, which concerned particular criminal conduct without lifestyle assumptions.

5. The proposed increase in compensation relied on material not before the sentencing judge and would have required further fact-finding. It concerned a stand-alone order with separate enforcement. Increasing it might also contravene section 11 of the Criminal Appeal Act, and the court might not have been seised of that aspect of the sentence.

• Court of Appeal (Criminal Division) Allowed the appeal against the confiscation order, quashed that order and its default term, and refused to increase the separate compensation order: [2012] EWCA Crim 2889.
• Liverpool Crown Court On 9 March 2012, made a confiscation order of £22,010 and a separate compensation order of £7,718 following convictions for theft and attempting to pervert the course of justice.