Confiscation Orders: Avoid a ‘Determination’ by ‘Taking a View’: R v Hilton (Northern Ireland) [2020] UKSC 29
| Author | Christopher Kirkbride |
| DOI | 10.1177/0022018320973486 |
| Published date | 01 February 2021 |
| Date | 01 February 2021 |
| Published By | Sage Publications, Inc. |
Case Note
Confiscation Orders: Avoid
a ‘Determination’ by ‘Taking
a View’
R v Hilton (Northern Ireland) [2020] UKSC 29
Keywords
Confiscation, joint ownership, property, representations
Facts
The facts of the case are relatively straightforward. The respondent was convicted in the Magistrates’
Court of offences relating to overpayment of benefits contrary to s 105A, Social Security Administration
(Northern Ireland) Act 1992. Following conviction, the case moved to the Crown Court for a confisca-
tion order to be made. Having found that the respondent had benefited from her criminal conduct in the
sum of £16,517.59, the judge made a confiscation order in the sum of £10,263.50. This lower sum can be
accounted for in the fact that the respondent had no assets, other than a house, which was jointly owned
with her partner. At the material time, the respondent was estranged from her partner and they were not
living together in the house.
The judge in the Crown Court calculated that the house, which was purchased with the benefit of an
interest-only mortgage, had a value of approximately £175,000. However, the mortgage debt was just
over £153,000. As joint owners, the judge considered that the respondent’s ownership interest, if
realised, would amount to just over £10,000. Where a property is jointly owned and is likely to be
realised or otherwise used to satisfy the order (s 160A(1)(a), Proceeds of Crime Act 2002, hereafter
‘PoCA’) then, at the time the confiscation order is made, a court may, if it thinks it appropriate to do so,
determine the extent of the defendant’s interest in such property (s 160A(1)(b), PoCA 2002). However,
the court must not exercise the power in s 160A(1) unless it gives to a person who the court thinks is
holding, or may hold, an interest in the property, a reasonable opportunity to make representations (s
160A(2), PoCA 2002). At this stage, no representations were made either by the respondent’s estranged
partner, nor by the mortgagee.
The respondentappealed to the Court of Appeal of Northern Ireland ([2017] NICA 73) on the
basis that the Crown Court judge’s failure to allow third party representations was in breach of s
160A(2), even though the provision had not been brought to the attention of the Crown Court
judge. The appeal court held that Parliament’s intention by the language used in s 160A(2) was
clear. Sub-section (2) was a mandatory provision and that the power in s 160A(1) could not be
exercised without observing it. Consequently, the failure to allow representations to be made by the
estranged partner or the mortgagee was a failure to engage sub-s (2) and the confiscation order was
invalid and should be quashed.
The Crown appealed to the Supreme Court in respect of two questions of general public importance.
First, ‘where property is held by the defendant and another person, in what circumstances is the court
making a confiscation order required by section 160A, PoCA 2002, in determining the available amount,
to give that other person reasonable opportunity to make representations to it at the time the order is
The Journal of Criminal Law
2021, Vol. 85(1) 54–57
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0022018320973486
journals.sagepub.com/home/clj
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