R v S

On a reconsideration of the available amount under section 22 of the Proceeds of Crime Act 2002, the Crown Court has a broad discretion to substitute an amount which it believes just. Lawfully acquired assets may be available to satisfy an unsatisfied confiscation order. The court may take account of delay, rehabilitation and substantial assistance given to law-enforcement authorities, including its value, risks and any payment received. There is no fixed tariff for the resulting reduction.

An appellate court will not interfere with the evaluative assessment unless it discloses an error of law or principle, falls outside the permissible discretion, or lacks any underlying reasoning.

The appellant was convicted in 2006 of possessing controlled drugs with intent to supply. A confiscation order fixed his benefit at £189,621.36. The available amount was later reduced to £8,550, leaving most of the benefit figure unsatisfied.

After his release, the appellant established businesses and acquired property. The Crown sought reconsideration of the available amount under section 22 of the Proceeds of Crime Act 2002. The Recorder increased the amount payable to £108,642.81, allowing a 40% reduction for the passage of time and the appellant’s valuable, risky assistance as a covert human intelligence source.

The appellant appealed, contending that public policy, delay and rehabilitation required no order or a substantially greater reduction.

Disposition

1. The appeal was dismissed. The Recorder was entitled to vary the confiscation order and require payment of £108,642.81.

2. Section 22(4) of the Proceeds of Crime Act 2002 gives the Crown Court a broad discretion. The words “may” and “believes is just” require an overall evaluative judgment, subject to the statutory limit. Lawfully acquired assets may be reached by the process. The policy that offenders should be deprived of the benefit of crime remained important, as illustrated by Padda [2014] 2 Cr App R (S) 149 and Leon John [2014] 2 Cr App R (S) 73.

3. Assistance provided after a confiscation order may in principle be considered when deciding what sum is just. The court should assess the quality, quantity and value of the assistance, the personal risks to the offender and family, and any reward paid. Assistance can justify a reduction, but a reduction also permits the offender to retain benefit derived from crime. There is no fixed measure for the adjustment.

4. Delay and rehabilitation were also relevant to the overall assessment. The Recorder had permissibly found no unreasonable delay after the application began, while making some allowance for the earlier passage of time. He was also entitled to find that the appellant’s rehabilitation did not outweigh the statutory policy of recovery.

5. The weight given to delay and assistance was primarily for the Crown Court. The Recorder’s clear and compelling reasons disclosed no error of law or principle, no impermissible exercise of discretion, and no absence of reasoning. The 40% reduction was therefore a reasonable assessment of a just sum.

• Court of Appeal (Criminal Division): dismissed the appellant’s appeal in [2019] EWCA Crim 569.

• Crown Court: on 29 March 2018, varied the earlier confiscation order under section 22(4)(a) of the Proceeds of Crime Act 2002, increasing the amount payable from £8,550 to £108,642.81.