Reynolds v R

Under section 6 of the Proceeds of Crime Act 2002, a confiscation order remains mandatory once the statutory conditions are met, save to the extent that requiring payment would be disproportionate. The proportionality safeguard prevents a breach of Article 1 of the First Protocol, but does not restore a general discretion to mould the order to perceived fairness. A prospective forced sale of a jointly owned family home is relevant but is not decisive; issues concerning sale, possession, and the interests of co-owners are ordinarily addressed at enforcement. An existing benefit-repayment arrangement does not make confiscation disproportionate unless it creates certainty of double recovery.

The appellant pleaded guilty to three offences under section 112 of the Social Security Administration Act 1992, arising from her failure to disclose her husband’s employment and the resulting benefit overpayment.

At confiscation proceedings in the Crown Court at Ipswich, the Recorder found benefit of £31,785.51 and a recoverable amount of £21,686.73 under section 6 of the Proceeds of Crime Act 2002. The appellant’s only substantial asset was her beneficial share in the jointly owned and adapted family home.

She appealed against the confiscation order. She contended that a voluntary arrangement to repay the overpayment from benefits, together with her and her husband’s disabilities and the likely need to sell their home, made the order disproportionate.

1. Appeal dismissed. The Recorder made no error of law in making the confiscation order.

2. Section 6 of the Proceeds of Crime Act 2002 generally requires the Crown Court to make an order for the recoverable amount once the statutory conditions are satisfied. As explained in Waya [2012] UKSC 51, the statutory proportionality qualification is confined to avoiding an infringement of Article 1 of the First Protocol. It does not recreate the broad discretion formerly available to adjust confiscation according to the justice of the individual case.

3. The order did not impose an individual and excessive burden contrary to Article 1 of the First Protocol. A potential forced sale of the family home was a relevant consideration, but it was not a trump card against confiscation. Applying Parkinson [2015] EWCA Crim 1448, the court held that questions whether a jointly owned home should be sold, including any Article 8 or equitable arguments available to the husband, should ordinarily be considered in enforcement proceedings if they arise.

4. The voluntary arrangement for deductions from benefit did not make the order disproportionate. Applying Mohid Jawad [2013] EWCA Crim 644, disproportionality would arise from certainty of double payment, not merely from the existence of another repayment mechanism. Repayment under the arrangement was uncertain, and the prosecution had undertaken to avoid double counting.

• Court of Appeal (Criminal Division): The appeal against the confiscation order was dismissed: [2017] EWCA Crim 57.
• Crown Court at Ipswich: On 24 June 2016, the Recorder made a confiscation order for £21,686.73 under section 6 of the Proceeds of Crime Act 2002.