Recent cases and Commentary

New Confiscation Authority

The Court of Appeal has ruled in R. v Cole [2018] EWCA Crim 888 that when the Prosecution apply under section 22 Proceeds of Crime Act 2002 for a Defendant's available amount to be reconsidered in respect of a historic confiscation order, it was wrong to not give consideration to the a change in the law which post-dated the original confiscation order (at para. [48]). The change of the law in this case was the effect of the Supreme Court judgment in R. v Waya [2012] UKSC 51 in calculating the benefit figure in cases of mortgage fraud.

The Court rejected the argument that there had been undue delay in making the application around 3 years after the original confiscation order was made (at para. [42, 43]).

The Court also confirmed at para. [55] an earlier authority of Oyebola [2013] EWCA Crim 1052 in which it was held that where a property is obtained through fraud and is subsequently rented out, that rental income is properly included in the benefit figure calculation as the proceeds of crime. The Court rejected a novel argument that the income was no longer the proceeds of crime because the lender, for commercial reasons, had continued the arrangement, notwithstanding the original fraud (at para. [37, 38, 56]. The Court therefore rejected an appeal of a later confiscation order made against this defendant. 

Barry Smith was instructed by the Crown Prosecution Service in this appeal. For full details, see the original judgment.