Proportionality: the silver lining to the confiscation cloud

We first saw the issue of proportionality gain prominence in the case of R v Waya [2012] UKSC 51, when it was held that a confiscation order could not be made if it was deemed to be ‘disproportionate’ (a word which many would argue summed up the Proceeds of Crime Act 2002 (“POCA”) perfectly).

Last week, the Supreme Court handed down judgment in the cases of R v Ahmad & Fields [2014] UKSC 36, and proportionality was again held to be relevant, this time in the context of double-recovery.

There are three key considerations to be had by the Court when considering an application for a confiscation order.

• Has the defendant benefited?
• What is the value of the benefit?
• What is the sum payable?

Where there are a number of conspirators, focus is often placed on the second question, value of the benefit, and the argument that it should be apportioned between the co-conspirators. The courts have repeatedly rejected that approach and, indeed, the position remains unchanged. No apportionment may be made between co-conspirators (unless it can be shown in the extreme, for example that a courier, when transporting the stolen £10m, received a notional payment of £100). All defendants will therefore be liable for the full amount.

The innovation which we see in Ahmad & Fields however is that it was held that to take the same proceeds twice over would not serve the legitimate aim of the legislation and, even if that were not so, it would be disproportionate. In my view it is the latter part of this statement which is key; the Supreme Court has reverted to the principle of proportionality which, as it said in Waya is imported by Article 1 of the First Protocol (or ‘A1P1’) into the relationship between the means employed by the State in the deprivation of property as a form of penalty, and the legitimate aim which is sought to be realised by the deprivation.

Thus, Orders may still be made against a number of conspirators for the full benefit. However, such Orders should now provide that they may not be enforced to the extent that a sum has been recovered by way of satisfaction of another confiscation order made in relation to the same joint benefit. There can no longer be double-recovery of the same amount.

It will be interesting to observe where this decision takes cases in which a co-conspirator is tried a year or two after his convicted co-defendant; proportionality could potentially re-surface in the argument over whether to stay the enforcement of defendant A’s confiscation order to await the outcome of defendant C’s later trial.

In any event, the Supreme Court has again found a way of bending this draconian legislation into something marginally more palatable.