Confiscation and Proportionality

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Confiscation remains one of the most challenging areas of criminal law, confusing not only clients but also many lawyers with insufficient expertise in this area.

In a recent case, the Supreme Court considered the situation where a person lies to secure a job but goes on to perform excellently in that role.

Is there a loss to the employer? If so, what is the value of that loss? Is it the wages paid or some other figure?

The point of law certified by the Court of Appeal, for answer by the Supreme Court was:

“Where a defendant obtains remuneration as a result of or in connection with an offence of fraud based upon the obtaining of employment by false representations or non-disclosure, in what circumstances (if any) will a confiscation order based on the wages earned be disproportionate within the terms of section 6(5) of the Proceeds of Crime Act 2002, or contrary to Article 1, Protocol 1 of the European Convention on Human Rights?”

The Supreme Court held that the answer is:

“Although we are not attempting to deal with all possible circumstances, the answer to the question certified […] is that in cv fraud cases, where, focusing solely on the performance of services, the fraudster has given full value for the earnings received — and putting to one side where the performance of the services constitutes a criminal offence — it will normally be disproportionate under the proviso in section 6(5) to confiscate all the net earnings made.

But it will be proportionate to confiscate the difference between the higher earnings made as a result of the cv fraud and the lower earnings that the defendant would have made had he or she not committed the cv fraud. In many situations of cv fraud, it will be appropriate, as a pragmatic approximation of that profit, simply to base it on the percentage difference between the fraudster’s initial salary in the new job obtained by fraud and the fraudster’s salary in his or her prior job. Moreover, there is no need for much time and effort to be expended in assessing, even in a broad-brush way, the difference between the earnings with and without the cv fraud if it is clear that, in any event, that difference will exceed the recoverable amount.”

In the case before the court, the benefit figure could have been £0 (as effectively decided by the Court of Appeal, which held that whilst there was a benefit, a confiscation order would be disproportionate), £643,602.91 (as ordered by the sentencing Judge), or £244,569 the figure decided by the Supreme Court.

It can be seen from the wide range of figures above that determining the correct amount is of the utmost importance for many defendants who have the money to satisfy the benefit figure.

We work with only the best advocates and financial experts to ensure that our clients do not pay one single penny more than is proper, based on established legal principles.

How can we help?

We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. If you would like to discuss any aspect of your case, please contact any member of our vastly experienced Criminal Defence team, for assistance with any criminal law related matter.

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Mr John Stokes (John.Stokes@danielwoodman.co.uk),
Mr Anthony Pearce (Anthony.Pearce@danielwoodman.co.uk) or
Mr Daniel Woodman (Daniel.Woodman@danielwoodman.co.uk).