Davenport v R.

Where a confiscation order includes a victim’s loss as criminal benefit, a separate compensation order may create disproportionate double recovery if restitution to the victim is assured. Assurance is a practical, evidence-based assessment and does not require immediate or mathematical certainty.

Identified, valuable assets subject to restraint and inevitable realisation may assure future restitution, even though a sale will take time. In that event, the confiscation order should be reduced to prevent the defendant paying the same benefit twice under Proceeds of Crime Act 2002.

The appellant was convicted of conspiracy to defraud following a lengthy trial at Southwark Crown Court. In subsequent confiscation proceedings, the parties agreed that his benefit from general criminal conduct was £12 million and that his available amount exceeded £13.9 million.

The Crown Court made a confiscation order for the full benefit and a separate compensation order of £1,943,620.56 for victims’ losses. That loss figure was already included in the agreed benefit. The principal issue was whether the combination produced disproportionate double counting, applying Jawad [2013] EWCA Crim 644, when payment depended on the sale of restrained property.

1. Appeal allowed on the confiscation issue. The separate compensation order was to stand, but the confiscation order was reduced from £12 million to £10,056,379.44. The renewed challenges to the prosecution costs order and the serious crime prevention order were refused.

2. The court had jurisdiction under the Proceeds of Crime Act 2002 to make both orders where the defendant had sufficient means to satisfy them. That jurisdiction remained subject to proportionality. Following Waya [2013] UKSC 51 and Jawad [2013] EWCA Crim 644, a confiscation order is generally disproportionate to the extent that it requires a defendant to pay again money fully restored to the victim.

3. A compensation order alone does not assure restitution. If payment remains uncertain, a confiscation order that includes the victim’s loss will not ordinarily be disproportionate. However, the Crown Court applied that principle too rigidly. Restitution need not be immediate or mathematically certain; the question is whether it is practically assured on firm evidence.

4. Here, the appellant’s valuable and identified assets were restrained and being realised. The principal property had an agreed expert valuation. The appellant could not prevent its realisation, and had strong incentives to co-operate in a sale. The prospect of delay or uncertainty inherent in a property sale did not prevent the court from finding that restitution in full was assured. The original orders therefore created impermissible double counting.

5. For future cases, Crown Courts should scrutinise claims of prospective restitution carefully. They should take a practical view of whether repayment is assured, remain alert to the increased significance of longer delays, and may adjourn where firm evidence suggests that repayment may soon be established.

• Court of Appeal (Criminal Division): Allowed the appeal against the confiscation order and reduced it to £10,056,379.44. It refused the renewed challenges to the prosecution costs order and serious crime prevention order.
• Crown Court at Southwark: Following the appellant’s conviction for conspiracy to defraud, the court made a confiscation order of £12 million and a compensation order of £1,943,620.56. It also made the challenged costs order and serious crime prevention order.