Magro, R v

Magro, R v

The court is bound by the decision in Clarke, which holds that the Crown Court has no power to make a confiscation order following conviction if an absolute or conditional discharge is imposed, despite the court's view that Clarke was wrongly decided. The legislative framework does not expressly permit confiscation orders in conjunction with discharge, and the omission is deliberate. Only the Supreme Court can overturn Clarke.

Parties
Prosecutor: R; Applicant: Magro; Applicant: Brissett; Applicant: Smith; Applicant: Varma
Jurisdiction
England and Wales
Judgment Date
08 July 2010
Procedural Posture
Criminal Appeal / Application for Leave to Appeal Against Sentence
Outcome
Varma's appeal allowed; time to appeal extended; point of law of general public importance certified; remaining applications adjourned pending Supreme Court decision.
Legal Topics
Confiscation Orders, Conditional Discharge, Absolute Discharge, Sentencing Powers, Jurisdiction of Crown Court
Criminal Law Proceeds of Crime Confiscation Orders Conditional Discharge Absolute Discharge Sentencing Powers Jurisdiction of Crown Court

Case Brief

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Parties

R

Prosecutor

Magro

Applicant

Brissett

Applicant

Smith

Applicant

Varma

Applicant

Procedural Posture

Criminal Appeal / Application for Leave to Appeal Against Sentence

Legal Issues

  1. 1 Whether the Crown Court has power to make a confiscation order following conviction if the defendant receives an absolute or conditional discharge for that offence
  2. 2 Whether the decision in R v Clarke [2009] EWCA Crim 1074 was correct

Ratio Decidendi

The court is bound by the decision in Clarke, which holds that the Crown Court has no power to make a confiscation order following conviction if an absolute or conditional discharge is imposed, despite the court's view that Clarke was wrongly decided. The legislative framework does not expressly permit confiscation orders in conjunction with discharge, and the omission is deliberate. Only the Supreme Court can overturn Clarke.

Court Disposition

Varma's appeal allowed; time to appeal extended; point of law of general public importance certified; remaining applications adjourned pending Supreme Court decision.

Orders

  • Varma's confiscation order set aside; appeal allowed.
  • Time to appeal extended in Varma's case.