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On appeal from: [2015] NICA 31

This appeal considered whether a confiscation order under the Proceeds of Crime Act 2002, s 156 can be made by a Crown Court in circumstances where the defendant is convicted in proceedings before that Crown Court of an offence or offences which were committed before 24 March 2003, given the stipulations of the commencement, transitional and savings provisions set out in the Proceeds of Crime Act 2002 (Commencement No5, Transitional Provisions, Savings and Amendments) Order 2003, arts 2, 4 and 11.

The Supreme Court dismissed the appeal by a majority of three to two. The Court held that the overarching consideration is that it was Parliament’s intention that (i) offences committed before the commencement date should not be included in the s 156 consideration; and (ii) offences committed after that date which could generate confiscation orders under the Act should be dealt with under s 156. It cannot have been intended that a number of post-2003 offences should be removed from the scope of the 2002 Act simply because the defendant was convicted of an associated offence before the commencement date. The Supreme Court concluded that there is no unfairness caused by any of the differences between the earlier regime and the regime under the 2002 Act where the 2002 Act regime is applied only to post-commencement offences, because the rules which are being applied are those which were in force, and publicly known, at the time the offences generating the confiscation order were committed.

In the dissenting judgment, Lords Reed and Mance took the view that the language of the provisions cannot be interpreted as excluding offences which the prosecution had elected to leave out of account for the purpose of assessing the benefit obtained by the defendant.

For judgment, please download: [2018] UKSC 23
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (23 Nov 2017 morning session) (23 Nov 2017 afternoon session)