The intricacies of Confiscation Orders, made under The Proceeds of Crime Act 2002 (‘POCA’), following conviction at the Crown Court, have been examined and explained in great depth in various articles which have appeared on this website over a considerable period of time.
POCA is designed to prevent a convicted defendant from benefiting from the financial proceeds of the criminal activity by confiscating available assets with the proceeds of sale passing to the State.
However, in addition to making Confiscation Orders, the Crown Court also has powers, derived from The Criminal Courts (Sentencing Act) 2002 to provide Compensation Orders which enable victims of crime to be compensated for damage suffered by reason of the offence(s) for which the defendant was convicted, such as personal injury.
To this extent there is a conflict between the legislation because any amount that could be used to satisfy a Compensation Order will also be classified as an ‘available asset’ to be paid in satisfaction of a Confiscation Order. Complications may, therefore, arise where a court makes both a Confiscation Order and a Compensation Order in circumstances where the defendant does not have sufficient assets available to settle both Orders but section 13 of POCA makes provision for the amount payable under a Compensation Order to be paid from the assets recovered by virtue of a Confiscation Order.
John Veale of Kangs Solicitors refers to the relevant legislation.
Confiscation proceedings are very complex for which legal assistance is essential.
Our team is led by Hamraj Kang who is recognised as a leading expert in the field. He is one of only two solicitors nationally to be ranked as a ‘star individual’ for six consecutive years in the legal directory Chambers & Partners.
Other members of the team are ranked in the Legal 500 and also ranked in Chambers & Partners.
For an initial no obligation discussion, please call our Team at any of our offices detailed below:
The Relevant Law | Kangs Confiscation Proceedings Solicitors
Section 13 Effect of order on court’s other powers
(1) ‘If the court makes a confiscation order it must proceed as mentioned in subsections (2) and (4) in respect of the offence or offences concerned
(2) The court must take account of the confiscation order before:
(a) it imposes a fine on the defendant, or
(b) it makes an order falling within subsection (3).
(3) These orders fall within this subsection –
(a) an order involving payment by the defendant other than an order under section 46 of the Sentencing Code (criminal courts charge) or a priority order;
(b) an order under section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);
(c) an order under Chapter 4 of Part 7 of the Sentencing Code (deprivation orders);
(d) an order under section 23 or 23A of the Terrorism Act 2000 (c. 11) (forfeiture orders).
(3A) In this section ‘priority order’ means any of the following-
(a) a compensation order under Chapter 2 of Part 7 of the Sentencing Code;
(b) an order requiring payment of a surcharge under section 42 of the Sentencing Code;
(c) an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013;
(d) a slavery and trafficking reparation order under section 8 of the Modern Slavery Act 2015.
Other Considerations | Kangs Compensation Order Solicitors
- The Court must leave the Confiscation Order out of account in deciding the appropriate sentence for the defendant.
- However, the Court will want to know what defendant funds may be available for fines, compensation and remediation. Accordingly, it is common, as in Environment Agency prosecutions for example, for the Confiscation Proceedings to be settled before proceeding to sentence.
- Should the Crown Court make both a Confiscation Order and one or more priority orders against the same person in the same proceedings, and the court believes the person will not have sufficient means to satisfy all those Orders in full, the court must direct that so much of the amount payable under the priority order(s) as it specifies, is to be paid out of any sums recovered under the Confiscation Order; and the amount it specifies must be the amount it believes will not be recoverable because of the insufficiency of the person’s means.
Who Can I Contact For Advice & Help? | Kangs National Criminal Defence Solicitors
The Team at Kangs Solicitors is highly regarded and nationally recognised for its expertise in dealing with all aspects of the complicated POCA process.
If you are subject to any criminal investigation or prosecution which may ultimately result in POCA proceedings, or anticipate becoming so, you should seek expert assistance immediately
Please do not hesitate to contact any of the following who will be pleased to assist you: