Confiscation orders and compensation orders

In Davenport [2015] EWCA 1731 the Court of Appeal was concerned with the unusual situation where both a confiscation order and a compensation order had been made against the Defendant following his conviction for conspiracy to defraud. Davenport had masterminded a sophisticated advance fee type fraud and the criminal benefit from his offending was agreed between the parties (the prosecuting authority was the Serious Fraud Office) at £12 million. Again, a somewhat unusual feature of this case was that Davenport actually had a high value identifiable asset which was a central London property (33 Portland Place) which value had been agreed between the parties at £14m (thereby in excess of the agreed benefit). It was explicitly stated that the benefit figure "included the totality of payments made by the victims and so lost to Gresham (and so lost to them)." However, the Judge made a compensation order of £1,943,620 in addition to a confiscation order of £12 million. So, in fact, Davenport paid (from the restrained proceeds of sale of his property) the sum of £13,943,620. Thus, the reality is that the Judge had already incorporated the £1.943m with the result that D paid twice. D, understandably argued that this was "disproportionate" from an A1P1 perspective in the Waya sense. The Court of Appeal agreed. Whilst the Court does have power to order both compensation and confiscation provided the defendant has the means (in this case extraordinarily he did) to pay them but the Crown cannot recover twice where the victims are certain to compensated.

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