Lord Walker Lady Hale Lord Judge Lord Kerr Lord Clarke Lord Wilson Lord Reed
Sir Anthony Hughes
JUDGMENT GIVEN ON
14 November 2012
Heard on 27, 28 and 29 March 2012
Appellant
Respondent
Ivan Krolick
David Perry QC
Oliver Grimwood
William Hays
Stephen Akinsanya
(Instructed by Central
(Instructed by Crown
Law Practice)
Prosecution Service)
Advocates to the Court Jonathan Swift QC
Duncan Penny
(Instructed by Treasury
Solicitor)
Intervener (Secretary of State for the Home
Department)
Lord Pannick QC
Mark Vinall Emily Neill
(Instructed by Treasury
Solicitor)
LORD WALKER AND SIR ANTHONY HUGHES (with whom Lady Hale,
Lord Judge, Lord Kerr, Lord Clarke and Lord Wilson agree)
I
Overview
1. This appeal raises important and difficult issues as to the meaning and effect of Part 2 of the Proceeds of Crime Act 2002 (“POCA”), dealing with post- conviction confiscation. It does not concern civil recovery under Part 5 of POCA, which was considered recently by the court in Serious Organised Crime Agency v Perry [2012] UKSC 35, [2012] 3 WLR 379 nor, although the argument ranged widely, did it address by any means all of the questions which are raised in a post- conviction case. But because of the importance and difficulty of the issues which are raised, the appeal (originally heard by a court of seven Justices in 2011) has been re-argued before a court of nine. These issues relate chiefly to the calculation of benefit and the impact of the Human Rights Act 1998 (“HRA”). At the rehearing the Court has had the benefit of argument not only on behalf of the original parties, but also from counsel instructed as advocates to the Court and counsel on behalf of the Secretary of State for the Home Department as an intervener.
2. POCA is concerned with the confiscation of the proceeds of crime. Its legislative purpose, like that of earlier enactments in this field, is to ensure that criminals (and especially professional criminals engaged in serious organised crime) do not profit from their crimes, and it sends a strong deterrent message to that effect. In R v Rezvi [2002] UKHL 1, [2003] 1 AC 1099, para 14, Lord Steyn stated:
“It is a notorious fact that professional and habitual criminals frequently take steps to conceal their profits from crime. Effective but fair powers of confiscating the proceeds of crime are therefore essential. The provisions of the 1988 Act are aimed at depriving such offenders of the proceeds of their criminal conduct. Its purposes are to punish convicted offenders, to deter the commission of further offences and to reduce the profits available to fund further criminal enterprises. These objectives reflect not only national but also international policy.”
These observations have been cited and followed many times, although Lord Steyn’s reference to punishment needs some qualification. Despite the use of the term “confiscation”, which is a…
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.
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Details
AGLC
R v Waya [2012] UKSC 51
Case
[2012] UKSC 51
Decision Date
CaseChat Overview and Summary
Ivan Krolick, for the appellant, and Oliver Grimwood, for the respondent, submitted on the appeal before the Supreme Court. The case concerned the meaning and effect of Part 2 of the Proceeds of Crime Act 2002, dealing with post-conviction confiscation. The appeal concerned the calculation of benefit and the impact of the Human Rights Act 1998. The majority of the Court held that the confiscation order was to be made in the sum of £392,400, while Lord Phillips and Lord Reed dissented. The majority held that the benefit obtained by Mr Waya from his criminal behaviour was a thing in action with no immediate market value. The benefit came to have a significant value, that is 60 per cent of the appreciation in the net value of the flat, subject to the mortgage. The majority considered that the confiscation order based on the POCA benefit was proportionate. Lord Phillips and Lord Reed dissented from the majority's conclusion that the POCA benefit was the same as the real benefit that Mr Waya obtained from his crime. They proposed to explain their problems with the majority's analysis before setting out their own approach to this case. They held that the property initially obtained by Mr Waya as a result of his criminal conduct was the flat. They concluded that the confiscation order should be proportionate to the benefit obtained by Mr Waya from his criminal conduct.