Davenport v R

A case that further clarifies when a court should, and should not, make confiscation orders in combination with compensation orders.

In this case Davenport, described as a very sophisticated fraudster, had paid £12 million in confiscation plus £1,943,620.56 in compensation. The confiscation benefit calculation included £1,943,620.56 in respect of particular criminal conduct. It was agreed that the defendant had £13,943,620 available.

The Judge in the Crown Court found that the appellant had sufficient means to satisfy both orders in full (s.13 POCA). It is that which gave rise to the appeal.

Held:

In upholding the appeal the court applied Waya [2013] I AC 294, [2013] UKSC 51 and Jawad [2013] 1 WLR 3861, [2013] EWCA Crim 644 and replaced the original order stating, ‘the compensation order in the sum of £1,943,620.56 will stand. The amount of the confiscation order is in consequence reduced from £12 million to £10,056,379.44.'

The court went on:

In future where the Crown seeks both a compensation order and a confiscation order in circumstances where s.13(5) and (6) are not applicable, we think that judges may wish, irrespective of whether or not they are proceeding under s. 6(6), to bear in mind the following points:

The Court is empowered to make both a confiscation order and a compensation order.
However, the court should be alert to any risk of double counting inherent in such a combination of orders and should be alert to the risk of making a confiscation order which is disproportionate.
The court ordinarily should not make both a compensation order and a confiscation order representing the full amount of the benefit where there has been actual restitution to the victims prior to the date of the confiscation hearing: Waya and Jawad.

Where a defendant asserts there will be restitution after the date of the hearing the court should scrutinise very carefully the evidence and arguments raised in support of such assertion.
If the court remains uncertain whether the victims will be repaid under the compensation order then a confiscation order which includes that amount will not ordinarily be disproportionate.
Mathematical certainty of restitution is not required. The court should be practical and realistic in deciding whether restitution is assured.

Restitution to the victims in the future is capable of being properly assessed as assured, depending on the particular circumstances, notwithstanding that restitution will not be immediate, or almost immediate, at the time of the hearing. The longer the time frame the greater force there will be to an argument that restitution is not assured: but a prospective period of delay in realisation is not of itself necessarily a conclusive reason for proceeding to make a combination of orders without reducing the confiscation order.

Whilst a defendant who is truly intent on making restitution in full to his victims ordinarily should be expected to have arranged such restitution prior to the date of the confiscation hearing there may sometimes be cases where that is not possible. If the court has firm and evidence-based grounds for believing that restitution may nevertheless be forthcoming, albeit that cannot be taken as "assured" at the time of the hearing, the court has discretion to order an adjournment to enable matters to be ascertained.

Finally, each case must be decided on its own facts and circumstances.