9 August 2013

The recently decided case of R v Waya (Appellant) [2012] UKSC 51 could mean the re-opening of many cases resulting in Confiscation Orders.

Experience has shown that confiscation orders handed down by the Courts under the provisions of the Proceeds of Crime Act 2002 are affecting more Defendants in criminal proceedings than ever before. It is our view that confiscation proceedings will continue to rise in an era where more Defendants are appearing before the Courts on foot of benefit fraud and mortgage fraud type charges.

Defendants who plead guilty or who are found guilty of unlawfully obtaining benefits need to be aware that, at the conclusion of the case, there is a high likelihood that the prosecuting authorities will apply to the Court for a Confiscation Order. The Defendant could be ordered to pay back what the Court deems to be his/her "benefit" in respect of the fraud they have been convicted of. Thus, a Defendant who owns their own home could be ordered to pay back thousands of pounds if the Court accepts that they benefited financially from the fraud in say the obtaining of or payments of the mortgage for that home.

In the Waya case, the Appellant was convicted of making a false statement on a mortgage application for a loan of 60% of the purchase price of a flat. A year later he remortgaged the flat, thereby redeeming the original loan. A Confiscation Order of 1.5 million pounds was made by the Court which represented the current value of the flat at the conclusion of the criminal proceedings minus the Appellant's original contribution.

The issue for the Court to decide was whether it was "proportionate" to order the Appellant to pay the total market value of the flat as it stood at the conclusion of the criminal proceedings. In this cases, the Appellant had borrowed £475.000 on foot of the fraudulent mortgage application. At the conclusion of the criminal proceedings he was being ordered to repay a staggering £1.5 million. Failure to do so would result in a lengthy prison sentence.

Waya had made false statements about his employment record and his earnings in the mortgage application. The Judge at the original Crown Court trial (who made the Confiscation Order) suggested that the Appellant's own mortgage advisors may have in fact encouraged him to make false statements.

Here at Higgins Hollywood Deazley, we would be happy to liaise with any client seeking advices in relation to a Confiscation Order previously handed down by a Court in Northern Ireland. It may be possible to have such an Order referred back to the Court of Appeal for reconsideration in light of the R v Waya Judgment. We are happy to advise clients on the lawfulness of the original Confiscation Order and consider whether the amount of the Order was proportionate in all of
circumstances. If you require assistance in this area, please contact our Criminal Team on a no obligation basis.

Furthermore, if you believe you have been mis-sold a mortgage please contact a member of our Litagation Team who will happy to advise you further.

Read the full judgment here:



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