Waya 1 - A Novel and Imaginative Development of the Law

The Supreme Court’s (SC) judgment in Waya ([2013] 1 A.C. 294) has been rightly lauded as a landmark decision in the field of post-conviction confiscation, writes Roger Sahota in the first in a series of articles considering the impact of the case.

Waya concerned a mortgage fraud which is dealt with below. However, the most important part of the ruling was the SC’s application of the principle of proportionality in confiscation proceedings (paragraphs 1-34) and the implications of the stance taken by a minority of the SC justices.

Confiscation Orders Must be Proportionate i.e. Fair

In summary, the SC said that a sentencing judge was entitled to refuse to make a confiscation order if it was “disproportionate” because it breached Article 1 of the First Protocol the ECHR (referred to as “A1P1”).

A1P1 guarantees the right to “peaceful enjoyment” of one’s possessions which can only be interfered with in limited circumstances in the public interest.

In itself this declaration adds nothing new to the law. Our courts are required to take account of the provisions of the ECHR as it was incorporated into English law with the passing of the Human Rights Act.

What has changed as a consequence of the SC’s ruling is the requirement for a proportionality test to be applied to every confiscation order.

The SC was divided on what that test should be. The prevailing majority view has it’s limitations but still merits claims of a significant shift in the judiciary’s approach to confiscation orders.

Lord Philips described the identification of A1P1 as “novel and imaginative.” It is worth noting nonetheless that the SC’s decision echoes the submissions made in R v May by the Defence (Andrew Campbell Tiech QC). May was the leading House of Lords confiscation authority before Waya. Interestingly, Lord Philips and Baroness Hale presided over both appeals;

“The submissions attractively advanced by Mr Campbell-Tiech QC for the appellant were in essence simple. Parliament intended to establish a confiscation regime which was effective but fair. It intended to strip wrongdoers of their ill-gotten gains but not to deprive them of that which they had never had, to permit recovery of the same sum against different defendants or to permit recovery of a sum exceeding what the victim had lost. Such results were oppressive and disproportionate, inconsistent with article 1 of the First Protocol to the European Convention on Human Rights”

The original article can be found at www.confiscationorder.com