Sachan, R v

Where confiscation proceedings are postponed, section 15(2) of the Proceeds of Crime Act 2002 prohibits the sentencing court from making a compensation order during the postponement period. A breach does not, however, automatically render the compensation order wholly invalid. The provision is construed purposively by asking whether Parliament intended total invalidity. A premature compensation order may remain in force where the defendant suffers no prejudice and is protected from double recovery through both compensation and confiscation.

The appellant pleaded guilty to fraud by abuse of position. At sentence, the Crown Court imposed imprisonment and ordered compensation of £51,450, while intending to pursue confiscation proceedings.

At a later confiscation hearing, the Crown Court made a confiscation order and directed that its proceeds be paid as compensation. The appellant sought, out of time, to challenge the original compensation order and the confiscation order. The central issue was whether the earlier compensation order was a nullity because it had been made during the postponement of confiscation proceedings.

Appeal dismissed. The court granted an extension of time, permitted the grounds to be varied, and granted leave to appeal. As the compensation order formed part of the original sentencing exercise, the proper procedure was an out-of-time renewal of the earlier application for leave to appeal against sentence, coupled with an application to vary its grounds.

1. Section 15(2) of the Proceeds of Crime Act 2002 prohibited the Crown Court from making a compensation order while confiscation proceedings were postponed. The order was therefore made in breach of that provision.

2. Following the reasoning in R v Paivarinta-Taylor [2010] EWCA Crim 28, which applied the purposive approach described in R v Soneji & Bullen [2006] 1 Cr App R(S) 79, the breach did not cause total invalidity. The statutory purpose was to preserve the primacy of confiscation, not to nullify every financial order made prematurely. There was no relevant distinction between a fine and a compensation order: both were among the orders specified in section 15(2).

3. There was no reason, in the circumstances or justice of the case, to set aside or vary the compensation order. It reflected the appellant’s basis of plea, caused him no prejudice, and payments under the confiscation order were credited towards it. The Crown undertook not to enforce the orders so as to recover more than £51,450, subject to statutory inflation adjustment. That undertaking removed any risk of double liability.

• Court of Appeal (Criminal Division): The appeal against the compensation order and confiscation order was dismissed: [2018] EWCA Crim 2592.
• Crown Court at Southwark: The appellant was sentenced to imprisonment and ordered to pay £51,450 compensation while confiscation proceedings were to follow.
• Crown Court at Southwark: At the final confiscation hearing, a confiscation order of £18,545.65 was made and its proceeds were directed to compensation.