As outlined in previous articles, the purposes of a Confiscation Order (‘a Confiscation Order’) made by a Crown Court under the Proceeds of Crime Act 2002 (‘POCA’) are to recover for the Treasury such assets as are found to be readily available following a conviction, to make provision for any further recovery that may become available and to deprive a defendant of any financial benefit deriving from such crime.
When a Confiscation Order is made, the court will announce the term of imprisonment which will have to be served should the defendant fail to pay after the expiration of, normally, a period of three months.
Suki Randhawa of Kangs Solicitors outlines the relevant law and procedure determining whether or not a defendant should be committed to prison for breach of a Confiscation Order.
The Relevant Law | Kangs National POCA Solicitors
- Section 35 of POCA places the enforcement with the Magistrates’ Court.
- Section 14 (1) of the Power of the Criminal Courts Sentencing Act 2000, provides that a Confiscation Order is to be treated as if it was a
- Section 76 of the Magistrates’ Court Act 1980 (‘the MCA 1980’) enables the Magistrates’ Court to imprison a defendant for non-payment of a Confiscation Order by a Warrant of Commitment.
The Magistrates’ Considerations | Kangs POCA Advisory Team
Under Section 82 (4) of the MCA 1980 where the Magistrates’ Court is required to enquire into a defendant’s financial means prior to the issue of a warrant of commitment for a default in paying it must
- be satisfied that the default is due to the defendant’s wilful refusal or culpable neglect and
- have considered or tried all other methods of enforcement and decided they are either inappropriate or unsuccessful.
Judgement in Munir v Bolton Magistrates Court (2010) EWHC 3794 (Admin) stated that the Magistrates’ Court is not required to hold any further means of enquiry because the Crown Court has previously attended to that.
The Magistrates’ Court, therefore, has to determine whether or not there is actual wilful refusal or culpable neglect in discharging the debt and, accordingly:
- where procedures have been put in place to realise the assets named in a Confiscation Order no committal should take place, even if this leads to a delay in the realisation of assets
- where properties have been put up for sale, or a liquidator appointed, it would be wrong in law for a warrant of committal to be granted.
How Can We Assist You ? | Kangs POCA Defence Solicitors
If you find yourself faced with POCA proceedings it is essential that you have the support or guidance of experienced Solicitors from the outset. At Kangs we have an experienced team defending clients in all aspect of criminal law on a daily basis and who are well versed in POCA, cash seizures and all manners of restraint procedures.
Our team is led by Hamraj Kang who is recognised as a leading expert in the field by both legal directories Chambers & Partners and the Legal 500.
Other members of the team are ranked in the Legal 500 and also ranked in Chambers & Partners.
You should not hesitate to contact our team through any of the following who will be happy to discuss any concerns you may have: