The Practical Lawyer


Confiscation – restraint order

An appeal in relation to an application under s22 POCA succeeded. This is the first time the CA has approved a percentage reduction in a confiscation order on appeal under s22.
In 2007, the Crown Court made a confiscation order against D who had earlier been convicted of three counts of possessing controlled drugs with intent to supply. Meanwhile he was in prison for four-and-a-half years. On his release, he set up in business and bought a property which alerted the authorities.
The CPS obtained a restraint order on the property then began the s22 proceedings. The Recorder applied a 40% reduction to the available amount. He took the view that a property legitimately acquired after a confiscation order was made was, in principle, within the reach of the POCA process. Two particular factors considered by the Recorder were the 11-year delay in bringing the application, and the ‘substantial’ assistance D had given to the police.
On appeal, D argued that because of the delay, no order should have been made under s22, and it was also contrary to public policy to pursue the application against him in light of the assistance he gave the police after his release. He also said insufficient weight was given to his rehabilitation. The level of discount should, he argued, have been 75-80%.
The CA found that the Recorder’s decision to apply a 40% deduction to the available sum was a reasonable assessment. His reasoning was clear and compelling, involving no error of law or principle. The appeal failed.
The case illustrates that judges have a broad discretion in relation to s22 applications. Criminal practitioners ought to note the six points of guidance set out in the ruling for such cases. R v S [2019] EWCA Crim 569. Source:

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