Hulland, R.

Under Proceeds of Crime Act 2002, a confiscation order will ordinarily be required once the recoverable amount is established. The proportionality qualification in section 6(5) is not a broad discretion. It will be engaged only exceptionally, where the court is affirmatively satisfied that enforcement is impossible.

Present impecuniosity and drug dependency do not, without clear and complete evidence of impossibility, make an ordinary case exceptional. A transfer of criminal property for materially inadequate consideration may properly be treated as a tainted gift and included in the available amount.

The appellant had pleaded guilty to burglary after stealing, among other items, two Rolex watches. He transferred the watches to his drug dealer in satisfaction of a £1,500 drug debt. The Recorder at Reading Crown Court made a confiscation order of £14,763, representing the value of the watches less the discharged debt.

On appeal, the appellant abandoned his challenge to the characterisation and valuation of the transfer as a tainted gift, and did not pursue his challenge to the default term. The remaining issue was whether the order was disproportionate under section 6(5) of the Proceeds of Crime Act 2002.

1. Appeal dismissed. The Recorder was entitled to treat the transfer of the Rolex watches as a tainted gift and to value it at £14,763. The court also held that the 12-month term of imprisonment in default was proportionate.

2. Under section 6(5) of the Proceeds of Crime Act 2002, once the court decides that the defendant has benefited from relevant conduct, it must determine and order payment of the recoverable amount unless requiring payment would be disproportionate. The qualification is exceptional. It does not confer a broad discretionary assessment of fairness.

3. Following Waya [2013] 1 AC 294 and R v Johnson (Beverley) [2016] EWCA Crim 10, the court held that disproportionality could arise only if the court were affirmatively satisfied that enforcement was impossible. The Recorder had made no such finding. She had correctly found the position uncertain, including because others might provide funds.

4. The appellant's current lack of funds and drug dependency did not establish impossibility or make the case exceptional. The court endorsed the need for scepticism and clear, complete and unassailable evidence before departing from the usual confiscation order, as recently confirmed in R v Box [2018] EWCA Crim 542. The order was therefore not disproportionate.

• Court of Appeal (Criminal Division): Dismissed the appeal against the confiscation order.

• Crown Court at Reading: On 27 January 2017, made a confiscation order for £14,763 under the Proceeds of Crime Act 2002, payable within three months, with 12 months' imprisonment in default.