THE PROPORTIONALITY EXEMPTION AND POCA CONFISCATION ORDERS

On 24th March, law chambers 6KBW published a report on the Court of Appeal case of R v Morrison.  The the Court considered the principles governing section 6(5) of the Proceeds of Crime Act 2002, which require the court to make a confiscation order if it would not be disproportionate to require the defendant to pay the recoverable amount.  The Court said that the existence of the exception did not mean that a general discretion was vested in the court.  The court of first instance had held that it would be  disproportionate to make any order in relation to a “tainted gift” – that the recipient had no interest in the property involved and it would not be possible for the Crown to recover it or any part of its value from the defendant.  The prosecutor appealed, and the Court of Appeal agreed that the court had erred in concluding that it would be disproportionate to include the tainted gift in the confiscation order.  The Court of Appeal said that the recorder had made the fundamental error of basing his decision upon the possibility of hardship or injustice to a third party.  The report does point out that an enforcement receiver could have been appointed, but that had not been pointed out to the judge involved, and it was unfortunate that the prosecutor had left him with the impression that an enforcement receiver could not be appointed.

https://blog.6kbw.com/posts/weekly-digest-25-march-2019

Author: raytodd2017

Chartered Legal Executive and former senior manager with Isle of Man Customs and Excise, where I was (amongst other things) Sanctions Officer (for UN/EU sanctions), Export Licensing Officer and Manager of the Legal-Library & Collectorate Support Section

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