Confiscation Order

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.