This article will give you an introduction to Confiscation Proceedings under the Proceeds of Crime Act 2002 (“POCA”).
Confiscation proceedings follow a conviction for certain types of offences.
This is a three-step process; the Judge asks three separate and distinct questions:
Has the defendant benefitted (financially) from criminal activity,
What is the extent of that benefit and
Does the defendant have available to them in assets a sum equivalent to that figure (in which case they will be ordered to pay into Court the full amount) or is their “available amount” lower (in which case that will be the amount ordered)?
The reason the Judge assesses the benefit figure first is that if the available amount is lower but the person later acquires further assets, e.g. by inheriting property or winning the Lottery, then the Prosecution can go back to Court and ask for the order to be amended to increase the amount that they have to pay. The person cannot be ordered to pay more than the benefit figure.
There are 2 kinds of benefit, “particular” (i.e. to the charge(s) of which the person has been convicted) and “general” (where a person is found to have a “criminal lifestyle”); this will entail a detailed investigation into a person’s financial history. The calculation of benefit can be a complicated process.
Having calculated the benefit the Judge is then required to order that the defendant pay into Court an equivalent amount unless the Judge is satisfied that this available amount is lower, in which case that is the amount which the defendant is ordered to pay. The reason it is expressed in this way is because the Judge does not have to be satisfied that the assets the defendant has available at the time the order is made came from criminal activity; they may have come from perfectly lawful sources.
When making a confiscation order the Judge will set a default period of imprisonment in case the money is not paid within the permitted time, currently three months. This can be extended in exceptional cases by a further three months but no more. In addition, interest is charged on late payment at the (current) rate of 8%, calculated daily. Interest is added even if the person is in prison and even if they are in prison serving the default time only.
Confiscation orders can be varied but the Court will require evidence of genuine efforts to pay. Enforcement is carried out in the Magistrates’ Court but only the Crown Court may vary the terms of an order.
Legal disclaimer: Articles are intended as an introduction to the topic and do not constitute legal advice. The information contained herein is accurate at the date of publication but please note that the law is ever changing and evolving. If you require advice in relation to any matter raised in this article please contact a member of the team.