Confiscation update – R v Waya


The judgment of the UK Supreme Court in the case of R v Waya was published on 14th November.

Many lawyers hoped that the Court might see fit to at last introduce an element of clarity if not sanity into the field of confiscation law. Sadly, the Court seems to have passed up that opportunity and come up with a judgment that satisfies nobody and confuses almost everybody.

The facts of the case were relatively simple. Basically, Mr Waya was convicted of a mortgage fraud after he bought a flat with a fraudulent mortgage. The flat was worth £1.85m by the time of the confiscation hearing.

The Crown Court decided his benefit was £1.54m. The Court of Appeal then lowered it to £1.1m. Now the majority of the Supreme Court has decided that the correct benefit figure should in fact have been £392,400. However, a “minority decision” by two judges held his “real benefit” should in fact have been zero, and so the confiscation order should be quashed completely.

So all three Courts came up with completely different figures, and the Supreme Court judges couldn’t agree among themselves. Confused? Join the club.

The minority judgment managed to introduce a further element of confusion by using for the first time the twin concepts of “real benefit” and “POCA benefit”. Having said that, it does help to illustrate how far removed the concept of benefit in confiscation has become from the  word “benefit” as it is understood by the general public.

The Court also put a damper on anything as radical as allowing an element of judicial discretion into confiscation proceedings. So Crown Court judges must continue to do what the law tells them to do, even if nobody is quite sure exactly what that is.

Having said all of the above, the judgment does contain some comfort for defence practitioners. The Court made clear that confiscation orders, in order to comply with the ECHR, must be “proportionate”. This was apparently a welcome if belated concession made by counsel for the Crown during the course of the case, following  many years of prosecutors arguing the contrary.

The Court less convincingly stated that the usual safeguard to protect a defendant against a “disproportionate” order would normally be the common sense of the prosecutor not to seek one and/or the common sense of the Crown Court judge not to make one. There will no doubt be many defence practitioners, and indeed many prisoners serving time in default for failing to pay orders made in “mickey mouse” sums, who will raise an eyebrow at that.

Nonetheless, the decision in Waya is bound to result in arguments being advanced in confiscation proceedings that had previously been thought to be unarguable. There may well be circumstances in which even if a defendant has obtained property as a benefit from criminal conduct, it might be “disproportionate” to make a confiscation order in a sum that would otherwise be recoverable. There may also be scope for argument that the issue of proportionality has special relevance to the operation of the assumptions, and the judgment is not unhelpful in that regard.

So “proportionality” is the new buzzword. It is welcome as bringing some semblance of fairness, but stops short of applying such a concept to all bar the most extreme cases. And, of course, that will mean different things to different people.

In 2008, the last attempt by the highest court in the land to clarify the law of confiscation (in R v May) led to a glut of decisions by Court of Appeal judges seeking to explain what the House of Lords really meant. And the problem was that none of them could agree – the last four years has seen a marked split in the Court of Appeal in such cases between its conservative wing and its liberal wing.

The Supreme Court may revisit this issue very soon in the pending case of R v Ahmad and Ahmed, which concerns the largest confiscation order ever made. But a more likely outcome is that Waya too will result in a series of Court of Appeal decisions where judges agonise over what proportionality really means. As Karl Marx observed, history repeats itself, the first time as tragedy, the second time as farce.

Judgement here:

Update 1st February 2013: a version of this article was published today in the February edition of “Inside Time”, the national prisoners’ newspaper;