R v Waya [2012] UKSC 51 – POCA – HRA - ECHR - A1P1.
1) stages in making a confiscation order.
2) right to peaceful enjoyment of possessions – article 1 of first protocol to ECHR.
- s 6(5)(b) POCA (making of a confiscation order) to be read subject to qualification “except insofar as such an order would be disproportionate”.
3) s 6 HRA gives rise to duty on P to ensure a disproportionate confiscation order is not sought.
- but, up to Crown Court judge not to make a disproportionate order; appeal lies to the Court of Appeal; judicial review not appropriate.
4) confiscation order in a lifestyle case based on the statutory assumptions is unlikely to be disproportionate.
- the three effects of a legitimate, and proportionate, confiscation order set out in R v May are consistent with POCA’s objective and represent proportionate means of achieving it.
5) even if proceeds of crime 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.
- however, a confiscation order in a case where D has restored any proceeds to the loser would be disproportionate.
6) In general, where a mortgage loan has been repaid or is amply secured, a proportionate confiscation order is likely to be the benefit that D has derived from the loan, i.e. the increase in value of the property mortgaged.
7) s 79(3) POCA means that if D and another person hold interests in the same property, the value of D’s limited interest should be used to calculate his benefit.
- s 84(2)(a) POCA means that a person who holds an interest in property holds property for the purposes of POCA.
- s 84(2)(b) POCA means that if a person obtains a limited interest in an item of property, it, not the whole interest, falls to be counted as benefit.
8) the appropriate calculation in this case.
undefined: unpaid
Related case digests
- R v May [2008] UKHL 28 - S 6 POCA.
- confiscation orders - the "3 questions": 1) has D benefited from relevant criminal conduct? - D obtains property if he owns it, alone or jointly; he has power to sell or control. 2) if so, what is the value of the benefit D has so obtained? - benefit is the total value of the property or advantage obtained, not the net profit. 3) what sum is recoverable from D? - the benefit or, if less, the available amount or, if nothing available, a nominal sum. 4) piercing the corporate veil. - when company property is that of its controllers. - R v Rezvi [2002] 2 WLR 235 - Ss 71 and 72AA CJA 1988 - article 6(2) ECHR.
- confiscation - sentencing. 1) - confiscation proceedings do not involve a fresh criminal charge. 2) the confiscation provisions are not disproportionate to the problem they address. - R v Ahmad and Anor; R v Fields and Ors [2014] UKSC 36 – S 71(4) POCA - HRA - ECHR - A1P1.
1) presumption of innocence in article 6.2 ECHR does not apply to confiscation hearings as they part of sentencing not the criminal trial. 2) a confiscation hearing was more civil than criminal and, as per s 6(7) POCA, issues could be decided on balance of probabilities. 3) where two or more Ds obtain control of property jointly each of them obtains all of it. 4) disproportionate for the state to take the same proceeds of crime more than once. - hence, where joint obtaining, the confiscation order although made against each D for the whole value of the benefit jointly obtained, should limit total recovery to the joint benefit.