Collins v The Director of Public Prosecutions

A confiscation order made against each of several offenders who jointly obtained criminal property remains a personal order against each offender. Payments made by one offender may reduce the others’ monetary liability because the state must not recover more than the benefit obtained. That principle does not make the default terms of imprisonment joint or shareable.

A default term is personal to the defendant and is imposed to exert pressure to secure payment. Neither proportionality under the Proceeds of Crime Act 2002 nor Article 5 or Article 1 of Protocol 1 requires credit for imprisonment served by another offender. Such credit would undermine the statutory purpose and produce anomalous results.

The appellant appealed by way of case stated against a decision of the District Judge at Westminster Magistrates’ Court enforcing a confiscation order made by HHJ Kinch QC at Woolwich Crown Court after convictions arising from the Hatton Garden burglary.

The confiscation orders included sums representing hidden assets jointly obtained by the defendants. Each defendant was ordered to pay the full relevant sum, subject to reduction for payments made towards the same joint benefit. The District Judge issued a warrant of commitment and ordered the appellant to serve 2,309 days in default.

The issue was whether imprisonment served, or to be served, by another defendant in default of payment of a confiscation order relating to the same joint benefit had to reduce the appellant’s default term.

1. The appeal was dismissed. The District Judge was not wrong to refuse to endorse the warrant so as to give credit for imprisonment served by another offender.
2. The monetary effect of the confiscation orders did not create joint liability in the technical legal sense. Each order was made against a particular defendant, who was liable to pay the whole order. The reduction of each defendant’s liability to reflect sums paid by another arose from the construction of the Proceeds of Crime Act 2002, the defendants’ Convention rights and the need to prevent double recovery.
3. The argument that shared monetary liability necessarily required shared default imprisonment confused different stages and concepts. A default term is personal because it requires the detention of the defendant against whom it is imposed. Section 38(5) of the 2002 Act confirms that serving the term does not prevent the confiscation order continuing to have effect for other enforcement purposes.
4. Proportionality is addressed when the confiscation order is made under section 6(5)(b) and, at the enforcement stage, through credit for payments under section 79(2) of the Magistrates’ Courts Act 1980 and the safeguards in section 82(4). Neither Article 5 nor Article 1 of Protocol 1 required a further set-off for another defendant’s imprisonment.
5. Such a set-off would defeat the statutory purpose of securing recovery of criminal assets and would create anomalies. Offenders acting jointly would be treated more favourably than offenders acting alone, and the efficacy of imprisonment as an enforcement mechanism would diminish as the number of offenders increased.

Mr Justice Linden agreed.

• High Court (Administrative Court): The appeal by way of case stated was dismissed. The District Judge’s decision at Westminster Magistrates’ Court was upheld.
• Westminster Magistrates’ Court: The District Judge issued a warrant of commitment and ordered the appellant to serve 2,309 days in default of payment.
• Woolwich Crown Court: HHJ Kinch QC made the confiscation order following the defendants’ convictions.