John, R. v

On a reconsideration under section 22 of the Proceeds of Crime Act 2002, legitimately acquired assets may be available to satisfy a confiscation order. The court must nevertheless decide what amount is just by assessing all relevant circumstances and the statutory policy of recovering criminal benefit.

A personal-injury settlement may require different treatment for its components. General damages are not excluded merely because they arise from an accident for which the defendant was blameless. However, it may be unjust to treat special damages, intended to reimburse injury-related expenditure already incurred or reasonably anticipated, as available assets. The assessment is fact-specific and calls for particular care where the asset is not a windfall.

The appellant had been convicted of conspiracy to steal and was made subject to a confiscation order. His criminal benefit was found to be £200,000, but the original order reflected the then available amount of £7,200.

In 2014, the Crown Court at Cardiff reconsidered the available amount under section 22 of the Proceeds of Crime Act 2002. It included sums in bank accounts and £23,000 held by an insurer under a proposed settlement of the appellant’s personal-injury claim arising from a road traffic collision for which he was not at fault. The settlement comprised £13,000 general damages and £10,000 special damages for specified medical and treatment expenses.

The appellant appealed the revised confiscation order. The central issue was whether, and to what extent, the personal-injury settlement could justly be included in the available amount.

1. The appeal was allowed in part. The Crown Court had correctly included the general-damages element of the personal-injury settlement, but it erred by including the £10,000 special-damages element.

2. Under section 22 of the Proceeds of Crime Act 2002, the court must make a new calculation and may substitute an amount which it believes to be just. That requires consideration of all relevant circumstances, including the outstanding criminal benefit, the additional assets now available, the elapsed time and the effect of a further payment on the defendant. The court must also give weight to the statutory policy of maximising recovery of criminal benefit, including from legitimately acquired assets.

3. In re Peacock (Secretary of State for the Home Department) [2012] UKSC 5 showed that the source and timing of increased wealth do not, in principle, prevent its use to meet a confiscation order. The appellant’s civil rights were not denied: he had obtained compensation for the injury, but his enjoyment of the proceeds could be curtailed because of his outstanding criminal benefit.

4. The court rejected the submission that general and special damages could never be distinguished. Special damages here reimbursed specific expenditure already incurred, or calculated to be incurred, because of the appellant’s injuries. Including those sums would not be just. General damages, however, were not to be excluded merely because they arose from a blameless accident; their source did not materially differ from other legitimate after-acquired wealth.

5. The assessment under section 22 is fact-specific. Courts should carefully balance the competing considerations, with particularly anxious consideration where the asset is not a windfall. The confiscation order was varied to £26,389.44, of which £7,200 had already been paid, payable within two months with 12 months’ imprisonment in default.

• Court of Appeal (Criminal Division) — allowed the appeal in part and varied the confiscation order: [2014] EWCA Crim 1240.

• Crown Court at Cardiff — on 2 January 2014, reconsidered the available amount under section 22 of the Proceeds of Crime Act 2002 and made a confiscation order for £36,389.44.

• Crown Court at Newport — on 8 January 2007, made the original confiscation order for £7,200 following the appellant’s conviction for conspiracy to steal.