R v Varma [2012] UKSC 42 (discharges and confiscation orders)

R v Varma

[2012] UKSC 42

 

In brief

The Supreme Court held that there is a duty to make confiscation orders in cases where an absolute or conditional discharge has been imposed.

Legislation

Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”)

 

What is a confiscation order?

Where a defendant is believed to have gained financially from his criminality, a court can impose a confiscation order, ridding the defendant of the proceeds of his criminal conduct.

 

What is an absolute or conditional discharge?

The effect of an absolute discharge is that the offender, although convicted of the offence, is not punished.  It is one of a range of sentencing options available to the court and is sometimes used instead of a low-level fine.

A conditional discharge is where an offender is not punished at the time of sentence, but receives a period of grace, often for 12 months.  If the offender were to be convicted of another offence during the period of discharge, they face being sentenced for that offence, as well as the original offence.

 

What has changed?

The Court of Appeal previously held, in R v Clarke [2009] EWCA Crim 1074, that a court does not have power to impose a confiscation order in cases where the defendant has given an absolute or conditional discharge.

 

Case summary

Aloke Varma was convicted of being knowingly concerned in the fraudulent evasion of duty on goods under s.170(2)(a) of the Customs and Excise Management Act 1979.  Essentially, he brought a quantity of tobacco into the UK without paying the relevant import duties.  For this offence Varma received a two year conditional discharge.  The court made a confiscation order in the sum of £1,500.  Varma appealed against the imposition of this order.

Issue

S.12 of the 2000 Act deals with the imposition of absolute and conditional discharges.  It states, at s.12(7):

Nothing in this section shall be construed as preventing a court, on discharging an offender absolutely or conditionally in respect of any offence, from making an order for costs against the offender or imposing any disqualification on him or from making in respect of the offence an order under section 130, 143 or 148 below (compensation orders, deprivation orders and restitution orders)

The legislation is silent on the issue of whether a confiscation order can be imposed where an offender has been absolutely or conditionally discharged.  Clarke deemed this to mean that it was the intention of parliament to exclude them.

Court of Appeal

Following the decision in Clarke, the Court of Appeal quashed the confiscation order against Varma, although Lord Judge CJ stated that, but for the decision in Clarke, the court would have reached a contrary conclusion.

The Supreme Court

The issue went to the Supreme Court, which held that not only is there a power to make a confiscation order in these circumstances, but there is a duty to do so under s.6 of the Proceeds of Crime Act 2002.

The full judgement of the Supreme Court can be found here, courtesy of Bailii.

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