The Limits of Proportionality

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 in the second of a series of articles considering the impact of the case.

No Return to Judicial Discretion

Many defence practitioners regularly express frustration at the “draconian” confiscation orders that often result from the operation of the mandatory provisions of POCA.


To their dismay, the SC in Waya was careful to emphasise that it’s decision did not (and could not) confer Judges with any discretion as to the making or quantum of a confiscation order.


Under the old confiscation laws, the position was different. s.71 of the Criminal Justice Act of 1988 allowed a Judge to make a confiscation order to “pay such sum as the court thinks fit” in certain circumstances.


In Waya the SC hinted that a return to the position under the old law might be desirable, however:


“The Crown Court has encountered many difficulties in applying POCA ‘s strict regime. Many of the complexities and difficulties of confiscation cases, arising from the extremely involved statutory language, would undoubtedly be avoided if a measure of discretion were restored, but whether to restore it and if so in which form, is a matter for Parliament and not for the courts.”


The original article can be found at