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10 July 2008
Issue: 7329 / Categories: Case law , Law digest
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Confiscation Order

R v Morgan [2008] EWCA Crim 1323, [2008] All ER (D) 274 (Jun)

The court retains the jurisdiction to stay an application for confiscation where it amounts to an abuse of the court’s process. That power exists where it would be oppressive to seek confiscation. It is not sufficient to establish oppression (and thus abuse of process) that the effect of a confiscation order will be to extract from a defendant a sum greater than his profit from his crime(s).

Where: (i) the defendant’s crimes are limited to offences causing loss to one or more identifiable loser(s); (ii) his benefit is limited to those crimes, (iii) the loser has neither brought nor intends any civil proceedings to recover the loss; but (iv) the defendant either has repaid the loser, or stands ready willing and able immediately to repay him, the full amount of the loss, it may amount to an abuse of process for the Crown to seek a confiscation order which would result in an oppressive order to pay up to double the full restitution which the defendant has made or is willing immediately to make.

There are some situations where it would not be oppressive to seek a confiscation order: (i) where the defendant, even if he has repaid the victim or is ready to do so, has significantly profited through use of the stolen money while it was in his hands and thus has obtained a benefit beyond the loss inflicted on the victim; (ii) where, although repayment in full is offered, it is uncertain that it will be accomplished; indeed it may be difficult to establish abuse in such a case unless the defendant has either already made restitution in full or is in a position to tender it immediately in a guaranteed form, such as a banker’s draft or funds in a solicitor’s hands.

Issue: 7329 / Categories: Case law , Law digest
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MOVERS & SHAKERS

Shakespeare Martineau—David Vaughan

Shakespeare Martineau—David Vaughan

Shakespeare Martineau appoints new London office head as firm continues investment in capital

Browne Jacobson—Kevin Moore

Browne Jacobson—Kevin Moore

Browne Jacobson strengthens All-Island life sciences platform with appointment of leading Galway MedTech lawyer

Clarke Willmott—Latitude Law

Clarke Willmott—Latitude Law

National law firm strengthens commercial offering with acquisition of leading immigration practice

NEWS
Mr Justice Nicklin’s decision to order costs on an indemnity basis may be a ‘significant win’ but it’s still ‘far from game, set and match’ for Associated Newspapers, a former costs judge has said
The Law Society RFC Festival of Sport returns next month, bringing together legal and financial services professionals for one of the sector’s largest annual sporting events
Legal aid deserts leave almost one in four without adequate access to justice
The Solicitors Regulation Authority (SRA) has warned solicitors and law firms that using artificial intelligence does not alter their professional obligations, amid concerns over inaccurate legal material and client confidentiality
From forgotten interest claims to case-management appeals, a string of procedural developments offers useful—and occasionally cautionary—lessons for practitioners
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