Posted: 25 / 10 / 2020
In September 2020 the Law Commission published a 700 page consultation paper on confiscation law in England and Wales under Part 2, Proceeds of Crime Act 2002.
Here David Winch picks his 7 quick wins from that consultation paper – positive changes which could be introduced relatively quickly and cheaply, without requiring proceedings in parliament.
The Law Commission consultation
The full 700 page consultation paper on confiscation law in England and Wales produced by the Law Commission in September 2020 is an immensely valuable document. Many of its suggestions would require primary legislation – a new Act of Parliament – to introduce.
In this relatively brief article I make a personal selection of just seven provisional proposals from the consultation paper which are capable of being introduced relatively speedily and cheaply. None of these seven would require either primary or secondary parliamentary legislation – yet they could, in my view at least, bring about significant improvements to the operation of the confiscation regime in the Crown Courts of England and Wales.
So what are my seven picks?
1. The content and form of s16 statements
Prior to the hearing at which a confiscation order is made the court will require a detailed statement from the prosecutor under section 16 PoCA 2002.
At present the Criminal Procedure Rules 2020, and specifically Rule 33.13, provide limited minimum requirements for the content of that statement.
The Law Commission provisionally propose, at paragraphs 7.91 to 7.101 of their consultation paper, that more detailed requirements for the form and content of a prosecutor’s s16 statement should be set out in the Criminal Procedure Rules and that the statement should comprise concise pleadings, statements and exhibits – lodged as separate documents.
2. Standardised timetables for confiscation proceedings
In relation to a criminal prosecution which is proceeding to trial in the Crown Court there is a single national process in place for trial management which is designed to ensure robust case management, a limited number of hearings, the early resolution of pleas and the identification of the issues in the case.
At present there is no similar standard procedure in relation to confiscation hearings, with the result that confiscation proceedings are at risk of drift.
The Law Commission provisionally propose, at paragraphs 7.66 to 7.84, that timetables for the provision of information, and service of statements of case, in confiscation proceedings should be set out in the Criminal Procedure Rules. The Commission provisionally propose that 28 days should normally be allowed for each stage in routine confiscation cases, and 56 days in more complex proceedings.
3. Codified legal guidance relevant to confiscation proceedings
One might suppose that advocates and judges concerned in confiscation and related matters would be fully aware of relevant statute and case law and would correctly identify the important principles from it. However that is not necessarily the case.
The Law Commission provisionally propose that, via the Criminal Practice Rules and Practice Directions, a recognised, distilled, and codified body of legal knowledge relevant to Part 2, PoCA 2002 be drawn up. This knowledge would include guidance on issues such as the treatment of benefit accruing to a company; benefit from duty evaded on goods imported (particularly tobacco); assets tainted by illegality (for example where there are criminal transactions within a legitimate business, or where an asset purchase is funded in part by proceeds of crime); and common intention constructive trusts – all of these are mentioned in chapter 14 of the consultation document. It is also suggested that guidance on hidden assets and tainted gifts (and appropriate default sentences in such cases) – mentioned in chapters 16 and 17 of the consultation paper – be included.
4. Warning the defendant concerning non-compliance
Sections 17, 18 and 18A of PoCA 2002 spell out potential adverse consequences for a defendant who does not, without reasonable excuse, comply with a court order to provide information to the court in confiscation proceedings.
But these provisions are not considered to have been conspicuously effective in triggering co-operation.
The Law Commission provisionally propose, at paragraphs 7.85 to 7.90, that the judge should be under an obligation to warn the defendant, in open court, of the potential adverse consequences of failure to comply with court orders, and of the extent to which the burden of proof in confiscation proceedings rests upon the defendant. It is suggested that a standard form of words be included in the Crown Court Compendium.
5. Including confiscation documents on the DCS
In relation to a criminal prosecution which is proceeding to trial, the Crown Court Digital Case System (known as the DCS) is an online document storage system with a standardised file structure to hold relevant documents such as witness statements, exhibits, court directions and orders, and other documents generated as the case progresses through the Crown Court.
At present no confiscation documentation is held on the DCS.
The Law Commission, at paragraphs 7.102 to 7.124, discuss digital storage of documents relevant to confiscation and conclude that they have not identified any fundamental legal impediment to storing confiscation material on the current Digital Case System. They also consider that use of the DCS could solve some apparent problems court users have in accessing relevant materials and Magistrates have in relation to the enforcement of confiscation orders.
6. Training and ‘ticketing’ Crown Court judges
The Commission found that across England and Wales just ten Crown Court centres accounted for a third of total confiscation hearings, the inference being that not all Crown Courts were dealing adequately with confiscation cases. The Commission were told by one practitioner “everybody hates confiscation, none of us want to do it”.
The Commission consider that in most confiscation cases complication generally arises because of the apparent complexity of the legislative provisions and their judicial interpretation.
They conclude that it is important that all Crown Court judges receive a thorough grounding in and regular updates on confiscation. They also consider that a system of ‘ticketing’ would assist Resident Judges in ready identification of, and allocation of work to, any judge with the relevant expertise and the willingness to undertake complex confiscation cases. These matters are deal with in chapter 11 of the consultation paper.
7. Early Resolution ‘ERoC’ meetings and hearings
Perhaps the most radical of the 7 points I have picked is the Law Commission’s provisional proposal concerning Early Resolution of Confiscation (‘ERoC’) meetings and hearings, dealt with in chapter 8 of the consultation paper.
At present there is no provision for early meetings between the defendant, his defence team and the prosecution team at which they could identify and discuss issues which arise and differences of view, and potentially come to an agreement (prior to the day of the planned confiscation hearing in the Crown Court).
The Law Commission provisionally propose, in chapter 8 of the consultation paper, that such meetings routinely be held in the expectation that, at the least, the meeting would enable differences to be identified and focused upon at an early stage – enabling better case management in confiscation proceedings.
None of the above points would require parliamentary involvement in order to be implemented. However they have the potential to significantly improve the handling of confiscation cases being dealt with in Crown Courts in England and Wales.
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(Note: This article applies to confiscation proceedings under the provisions of Part 2 of the Proceeds of Crime Act 2002 in England and Wales. There are a number of additional issues which could be relevant to a defendant’s confiscation proceedings in particular cases which it is not possible to deal with in a relatively short article such as this. Appropriate professional advice should be sought in each individual case.)