Confiscation order in value of benefit of unadministered estate disproportionate

In susan Ann Hursthouse [2013] LTL 9/4/2013 the Court of Appeal was reconstituted to re-hear the Appellants appeal following the decision of the supreme Court in Waya [2012] UKsC 51. The Appellant had pleaded guilty to fraud contrary to section 1 Fraud Act 2006. she had created a forgery of her late fathers will after obtaining power of attorney over his affairs before he died. The will had left his estate jointly to the Appellant and her cousin but she produced a forgery leaving the entire estate to herself. The fraud was discovered and the Crown obtained a Restraint Order over the estate before any property had been distributed. Following conviction, the Crown sought and obtained a confiscation order in the sum of 50% of the estate assessed as her benefit from particular criminal conduct.  Her argument that she had not obtained property within the meaning of section 76(4) Proceeds of Crime Act 2002 (POCA) was rejected on the basis that an interest in an unadministered estate is a thing in action and so falls within the definition of property within section 84(1)(c) [POCA]. Nevertheless, the making of a confiscation order in this case was found to be disproportionate as the property was being restored to its rightful beneficiary and thus quashed as incompatible to Article 1 ECHR following Waya.