Mundy, R v

Under section 22(4)(a) of the Proceeds of Crime Act 2002, variation of a confiscation order after a fresh calculation of available assets is discretionary. The court must first decide whether a variation is just in all the circumstances.

That assessment extends beyond fairness to the defendant. It includes the public interest in recovering the proceeds of crime, and may take account of later legitimately acquired assets. Delay is relevant but section 22 imposes no express time limit for reconsidering the available amount. On a prosecution appeal, the Court of Appeal will intervene only where the judge's discretionary decision was outside the reasonable range or resulted from an error of approach.

In 2008, Ian Mundy pleaded guilty at Cardiff Crown Court to drug-supply, drug-production and money-laundering offences. A confiscation order under the Proceeds of Crime Act 2002 required him to pay £9,275, although his benefit was assessed at £172,365. He paid the order in full.

In 2017 the Crown applied under section 22 to increase the available amount after identifying equity in property, vehicles and money in bank accounts. The Crown Court refused the application, holding that it would not be just to vary the order. The prosecution sought leave to appeal under section 31.

The central issue was whether the Crown Court's refusal fell outside the proper exercise of its discretion under section 22(4)(a).

1. Leave was granted, but the appeal was dismissed. The Crown Court's refusal to vary the confiscation order was confirmed.

2. Section 22(4)(a) of the Proceeds of Crime Act 2002 confers a discretion to substitute a higher amount only where the court believes that doing so is just. The court must address that question first. “Just” means just in all the circumstances, not merely just to the defendant. It includes the public interest in confiscating the proceeds of crime, even where later available assets were acquired lawfully.

3. Time since the original order may be relevant, but no express statutory limit applies to reconsideration of the available amount. Lawfully acquired assets do not automatically prevent variation. The court must assess the competing considerations carefully, particularly where the later assets are not a windfall. The court relied on R v Padda [2014] 2 Cr App R(S) 149, In Re Peacock (Secretary of State for the Home Department) [2012] UKSC 5 and Leon John [2014] 2 Cr App R(S) 73.

4. On a prosecution appeal under section 31, the court may confirm, quash or vary the decision under section 32. It reviews the exercise of discretion rather than deciding a binary issue afresh. Intervention is appropriate where the decision lay outside the reasonable parameters of discretion or the judge adopted an erroneous approach.

5. The judge's reasons were unduly abbreviated. The Crown and the public were entitled to understand why a prepared application had been rejected. Nevertheless, the Crown had materially reduced its valuations; the remaining assets were modest and disputed; and the treatment of the bank accounts was left largely to the judge's assessment. On the material before him, it was open to the judge to decline variation.

• Court of Appeal (Criminal Division): granted the prosecution leave to appeal and, in [2018] EWCA Crim 105, confirmed the refusal to vary the confiscation order.
• Crown Court at Cardiff: on 13 September 2017, refused the Crown's application under section 22 of the Proceeds of Crime Act 2002 to reconsider and increase the available amount.
• Crown Court at Cardiff: on 9 December 2008, made a confiscation order for £9,275 after assessing benefit at £172,365.