Conditional discharge no bar to confiscation

In Varma 2012 UKsC 42 the supreme Court was asked to decide whether the Crown Court has power to make a confiscation order where the defendant had been made the subject of an absolute or conditional discharge following conviction. Varma had pleaded guilty to an offence contrary to section 170(2) Customs and Excise Management Act 1979. It must have been tobacco smuggling on a small scale as the Crown Court discharged its obligation to sentence him on condition that he did not re-offend for two years. The Court went on to make a confiscation order in the sum of £1500. Varma appealed on the basis that it was wrong in principle to make a confiscation order where the Court had deemed punishment for the offence to be inexpedient by imposing a conditional (or absolute) discharge. He was relying on the Court of Appeal decision in Clarke [2009] EWCA 1074 which had quashed a confiscation order in like circumstances.

However, on a pure construction of the statutory scheme under the Proceeds of Crime Act 2002, the supreme Court disagreed with the reasoning in Clarke. The Court of Appeal in Clarke had relied upon section 12 Powers of Criminal Courts (sentencing) Act 2000 on the basis that Act precluded any punitive order being made in conjunction with an absolute or conditional discharge. In the opinion of the supreme Court, however, the Act only precluded the Court from making such further punitive orders where the making of that order was discretionary (eg compensation). Under the 2002 Act, the Court had a duty to make a confiscation order and as such could not be precluded by section 12 of the earlier Act from so doing.