Fiona Jackson appears in R v Gurpreet Singh Padda

The Court of Appeal this morning handed down judgment in R v Gurpreet Singh Padda [2013] EWCA Crim 2330, where the Court had been asked to consider an appeal against a revised confiscation order made against the Appellant under s.22 of POCA 2002.  Fiona Jackson appeared for the Respondent, the Crown Prosecution Service.

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The decision serves as a reminder to defendants upon whom a confiscation order has been imposed and the available amount found to be less than their benefit from their criminal offending, that the Court may revisit that confiscation order and increase it at any stage even to remove from them assets acquired legitimately after their criminal offending.

Section 22 permits the Crown Court to consider an application from the prosecution where a confiscation order has been made and the Court originally found that the available amount was less than the recoverable amount.  In the Appellant's case, his original benefit from his drug trafficking was found to be £156,226.74 with the available amount found to be £9,520; he served his prison sentence and satisfied that confiscation order in time.  In the s.22 application some 6½ years later, the Court acceded to the prosecution’s application to vary and increase the confiscation order to include legitimately after-acquired assets.

The CA considered the implications of s.22 post-Waya and whether such an application would be disproportionate so as to infringe a defendant’s A1P1 rights under the ECHR.  Dismissing the appeal, the Court found that s.22(4)(a) of POCA 2002 preserves an obligation on a court and a discretion to make an order which is just, taking into account all relevant circumstances which may include the amount outstanding, the additional amount which might now be available, the length of time since the original confiscation order and the impact on a defendant of any further payment but also taking into account the legislative policy in favour of maximising the recovery of the proceeds of crime, even from legitimately acquired assets.   

The Court held that:

“That discretion must of course be exercised in a way intended to “give effect to Parliament’s intention as expressed in the language of the statute.  The statutory language must be given a fair and purposive construction in order to give effect to its legislative policy”: see Waya paragraph 8.  It is perfectly clear that the policy underlying POCA and its predecessors places a high priority on the recovery of the proceeds of crime.  It is central to the scheme of the legislation that, at the time when a principal confiscation order is made:

“Even if the proceeds have been spent, a confiscation order up to the value of the proceeds will follow against legitimately acquired assets to the extent that they are available for realisation.”

See Waya paragraph 27.

In our view, the matter is clearly stated, albeit in relation to the 1994 Act in paragraph 29 of Peacock:

“As for the main argument, based on fairness and rehabilitation, naturally I recognise that Parliament could have chosen a different policy with regard to after-acquired assets.  But it seems to me perfectly understandable that in fact Parliament decided (as indisputably it did when later enacting POCA) to leave it open to the courts as a matter of discretion [emphasis added] to mulct a defendant of his criminal gains on an ongoing basis irrespective of precisely how and when he came by any increased wealth.”

In our judgment, the obligation of a court under section 22(4)(a), bearing well in mind the policy underlining POCA, is in the exercise of its discretion to make a “just” order.  It is in the very highest degree unlikely that any order which is “just” will be found to be disproportionate, so as to infringe A1 P1 of the European Convention of Human Rights.”

The judgment can be found here.