The objective of the system of confiscation proceedings can be summarised as follows:
When a defendant is convicted of a particular crime which the Crown believes has led to a financial benefit then the Crown will instigate confiscation proceedings under the Proceeds of Crime Act 2002 to try and recover all or part of that benefit.
The Crown will put forward it’s assumptions and provide the figure from which it is believed that the defendant has benefited as the result of their criminal conduct.
The defence will then either accept or challenge that figure and, ultimately, following negotiations between the parties and, possibly, a court hearing to resolve any disputed issues, a figure for realisable assets will eventually be confirmed by the Court (‘the Confiscation Order’).
At present, failure by a defendant to pay the amount ordered by the Confiscation Order, (without good excuse), will normally result in a potential additional prison sentence to any already imposed, which some people may find surprisingly harsh.
The applicable scale for additional imprisonment is:
|£10,000 or less||6 months|
|More than £10,000 but not exceeding £500,000||5 years|
|More than £500,000 but not exceeding £1,000,000||7 years|
|More than £1 million||14 years|
New Confiscation Law and Regime on the Horizon?
Despite this additional default sentence being available, it is not currently a criminal offence in itself for the defendant to fail to satisfy the Confiscation Order.
This has now been brought to the attention of Members of Parliament.
Recently, the Home Affairs Select Committee and other Members of Parliament stated that they believe non-payment of a Confiscation Order should be made a separate criminal offence.
Furthermore, their view is that no defendant serving a prison sentence should be released unless the Confiscation Order has been satisfied, which is contrary to current practice.
The Home Affairs Select Committee also proposes that a specialist Confiscation Court should be created to deal solely with confiscation proceedings to ensure that this aspect of criminal proceedings is more efficiently conducted.
The Reasoning | Confiscation Proceedings Solicitors
The reasoning behind these new proposals appears to be based upon the fact that there is an alarming low rate of financial recovery under the current regime.
The percentage of monies recovered, compared to the value of the Confiscation Orders made each year, is tiny being 26 pence for every £100 of criminal gain.
Currently, there is a £1.61 billion debt outstanding with the prosecuting authorities only managing to collect £155 million a year.
Of the £1.61 billion debt, it is widely accepted that only £203m could realistically ever be expected to be collected.
There are considerable practical difficulties in the proposals being suggested by the Home Affairs Select Committee. For example, a significant number of Confiscation Orders are made after the defendant has already served his or her sentence for the substantive offence, has already been released and is no longer in custody.
Additionally, there are cases where Confiscation Orders are made against defendants who do not receive a custodial sentence for the substantive offence.
As part of the new regime, there are proposals whereby each and every police officer should undergo specialist training in this area to ensure that matters such as money laundering and asset recovery are fully understood.
Confiscation Solicitors | POCA Solicitors
At Kangs we have specialist solicitors who deal with confiscation proceedings at all financial levels, from those which are comparatively modest to those which run into many millions of pounds.