R v Varma [2012] UKSC 42 - Ss 6 and 13 - 15 POCA – s 12 PCCSA.
- s 6 POCA does not prevent the court making a confiscation order where it gives or proposes to give an absolute or conditional discharge.
- s 6(1) POCA gives the court no discretion not to make a confiscation order if the conditions in ss 6(2) and (3) are satisfied.
- even if a discharge order is not a sentence, it is an order made as a result of “deciding the appropriate sentence” within the meaning of s 13(4) [POCA].
- s 13(4) POCA provides a confiscation order must be left out of account in deciding the sentence, hence whether a confiscation order is punishment is irrelevant to whether to make a discharge order.
- s 13(4) POCA is in clear terms and R v Clarke was wrongly decided.
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Related case digests
- R v Magro, R v Brisett, R v Smith, R v Varma [2010] EWCA Crim 1575 - Ss 6, 13 and 14 POCA – s 12 PCCSA.
1) decision in R v Clarke that a confiscation order cannot be made if D is given an absolute or conditional discharge was wrong, but must be followed as a binding precedent. 2) a five judge constitution of the Court of Appeal may not disregard the only previous decision of a three judge constitution of the Court on a distinct point of law, reached after full argument and consideration of the relevant legislation. Note: R v Clarke reversed by Supreme Court on appeal from instant case.