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THE END TO PUNITIVE POCA ORDERS


This is intended as a very brief overview of the main points from these long awaited House of Lords cases. As ever, the implications will only become clear when we start to apply this in practise.The case of R v May [2008] UKHL 28 involved a missing trader fraud.


The conclusion of the committee is that the decision of the Court of Appeal was for the most part correct. Those jointly responsible for an offence can be said to jointly obtain the resulting property and, recovery of the whole amount obtained as against each of them can be justified.The committee sets out the three stages which must be considered in making a confiscation order under POCA:· Has the Defendant benefited?·


What is the value of his benefit?· What is the recoverable amount?The development of the Act is considered and previous legislation and relevant cases are discussed. It is well worth reading as an overview of the aims and principles behind confiscation.There is a caveat that there might be circumstances in which orders for the full amount against several Defendants might be disproportionate and contrary to Article 1 of the First Protocol (right to peaceful enjoyment of property). In such cases apportionment might be adopted. There is no guidance as to what those circumstances may be, or how apportionment should be calculated.There is a very helpful endnote, which contains six “broad principles to be followed”. This will no doubt become a useful checklist in every case. Most of these are established law familiar to all practitioners.· The court must consider each of the three stages (above) separately.


The courts must establish what facts they can.· The court should focus on the language of the statute giving it its ordinary meaning.Point six is of crucial importance however, given the ratio of the case and bears repeating in full:"Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers."Clearly therefore basis of plea will have even greater significance. If there is no agreed basis, the Court will have to hear evidence of the Defendant's role. If he has significant assets, the issue of whether he has jointly obtained the benefit of the offence and is therefore liable for the whole amount will be crucial.CPS v Jennings [2008] UKHL 29 and R v Green [2008] UKHL 30These cases go on to consider similar issues in the light of May. Jennings is of interest in relation to the meaning of "obtains" in section 71 (4) Criminal Law Act 1988. Some of the Judgement of Laws LJ in the Court of Appeal is criticised, the House of Lords finding that a person may be said to have “contributed significantly” to property being obtained without himself obtaining it.


It is suggested that ordinarily he must have:"obtained property so as to own it, whether alone or jointly, which will ordinarily connote a power of disposition or control."Establishing whether a Defendant has "obtained" property in this sense will therefore now be a major feature of POCA hearings.
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