R v Varma (Respondent) - [2012] UKSC 42

Michaelmas Term

[2012] UKSC 42

On appeal from: [2010] EWCA Crim 1575

JUDGMENT

R v Varma (Respondent)

before

Lord Phillips

Lord Mance
Lord Clarke
Lord Dyson
Lord Reed

JUDGMENT GIVEN ON

10 October 2012

Heard on 27 June 2012

Appellant Respondent

David Perry QC Hugh Southey QC
William Hays Rupert Hallowes

(Instructed by Crown	(Instructed by Frame
Prosecution Service)	Smith Solicitors)

LORD CLARKE (with whom Lord Dyson and Lord Reed agree)

Introduction

1. On 27 November 2008, at the Crown Court in Isleworth, the respondent, Aloke Varma, pleaded guilty to three offences of being knowingly concerned in the fraudulent evasion of duty, contrary to section 170(2)(a) of the Customs and Excise Management Act 1979. The offences were committed on 24 October 2007 and 3 and 13 April 2008. On each occasion the defendant was stopped at Gatwick Airport and found to be in possession of a quantity of tobacco which he had brought into the United Kingdom without payment of the relevant import duties. Following his pleas of guilty, the matter was adjourned for sentence.

2. I take these facts from the agreed statement of facts and issues. On 15 January 2009 His Honour Judge Katkhuda (“the judge”), exercising his powers under section 12 of the Powers of Criminal Courts (Sentencing) Act 2000, sentenced Varma to a conditional discharge for a period of two years. In deciding that this was the appropriate sentence, the judge referred to Varma’s psychological problems and facial neuralgia. Confiscation proceedings under Part 2 of the Proceeds of Crime Act 2002 (“the 2002 Act”) were postponed.

3. The confiscation hearing was held on 3 April 2009. The judge found the value of the defendant’s benefit to be £7,257.86 and the available amount to be £1,500. Each of these figures had been agreed between the parties. A confiscation order was made in the sum of £1,500, which was ordered to be paid by 31 March 2010, with a term of imprisonment of 45 days in default of payment.

4. On 13 July 2009 Varma sought leave to appeal out of time against the confiscation order. He relied on R v Clarke [2009] EWCA Crim 1074, [2010] 1 WLR 223, in which the Court of Appeal (comprising Hooper LJ, Cox J and the Recorder of Nottingham) held in a reserved judgment that the Crown Court does not have the power to make a confiscation order against a defendant following conviction for an offence if he or she is made the subject of an absolute or conditional discharge in respect of that same offence. The essential reasoning was that it was inappropriate to punish a defendant by imposing a confiscation order in a case in which (by virtue of the fact that a conditional discharge had been imposed) the court thought that punishment was inexpedient.

5. Varma’s appeal was heard on 10 June 2010, together with three similar cases. The defendant in each of the four cases before the Court of Appeal had pleaded guilty in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Varma (Respondent)

Details

AGLC: R v Varma (Respondent) [2012] UKSC 42
Case: [2012] UKSC 42
Decision Date

CaseChat Overview and Summary

In the case of R v Varma, the Supreme Court considered whether the Crown Court has the power to make a confiscation order under the Proceeds of Crime Act 2002 when a defendant receives an absolute or conditional discharge for the same offence. The Court of Appeal had previously held that the Crown Court lacks such power, but the Supreme Court disagreed. The Supreme Court held that the Crown Court has both the power and the duty to make a confiscation order if the conditions in section 6 of the 2002 Act are met. The court rejected the Court of Appeal's decision in R v Clarke, finding it to be wrongly decided. The Supreme Court emphasised the mandatory nature of the confiscation provisions in the 2002 Act and distinguished the case from previous decisions which dealt with discretionary orders. The Supreme Court also noted that the confiscation order must be left out of account when deciding the appropriate sentence, thus allowing for the possibility of an absolute or conditional discharge even when a confiscation order is made. The appeal was allowed, and the confiscation order was restored.

Orders