R v Waya

The Supreme Court has ruled that the Human Rights Act requires criminal courts to refuse to make disproportionate confiscation orders.

Part 2 of the Proceeds of Crime Act 2002 (“POCA”) requires criminal courts to make post-conviction confiscation orders and contains detailed mandatory provisions for calculating the amount of the confiscation order. A nine-judge bench of the Supreme Court has held that s.3 of the Human Rights Act 1998 requires judges to refuse to make confiscation orders which POCA would otherwise oblige them to make, if the confiscation order would be disproportionate and violate the right to property under Article 1 of the First Protocol to the European Convention on Human Rights. The aim of POCA is to remove the proceeds of crime from criminals, rather than to impose an extra punishment, so a confiscation order that required the offender to (for example) pay the value of stolen property which had already been returned undamaged to its owner would be disproportionate. A confiscation order will not, however, be disproportionate merely because it requires the defendant to pay the whole of a sum which he has obtained jointly with others, requires several defendants each to pay a sum which has been obtained successively by each of them, or requires a defendant to pay the gross amount obtained by crime without deduction of the expenses of obtaining it.

The Court also gave some important guidance about the interpretation of Part 2 of POCA and its application to mortgage fraud.

The judgment is available at http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2010_0088_Judgment.pdf

Lord Pannick QC, Mark Vinall and Emily Neill appeared on behalf of the Secretary of State for the Home Department.