Posted: 08 / 02 / 2021
When making a confiscation order under the Proceeds of Crime Act 2002 the court will need to answer 8 key questions. Some of the answers are simply found, other may take hours or days of court time or – more likely – negotiations to and fro between the parties. But all 8 questions need to be resolved before the confiscation order can be finalised.
Q1. Does the court have power to make a confiscation order?
The Crown Court will have power to make a confiscation order where either (i) the defendant has been convicted of an offence in the Crown Court, or (ii) he has been convicted of an offence in the Magistrates’ Court and either (a) been committed to the Crown Court for sentence, or (b) been committed to the Crown Court specifically for consideration of the making of a confiscation order.
Q2. Does the defendant have a criminal lifestyle?
Whether the defendant has a criminal lifestyle has nothing to do with his lifestyle. It depends solely on the nature or number and value of his criminal convictions. There are several routes to a criminal lifestyle. They are considered in more detail in another blog article HERE.
Q3. What is the defendant’s benefit?
This is perhaps the most complex issue in the majority of confiscations – especially where the court has found that the defendant does have a criminal lifestyle. It is certainly the area where we, as forensic accountants, are most often called upon by the defendant’s legal team to provide our expert assistance – backed up by our gifted team of analysts using their purpose-built analytical software.
Q4. How much of the defendant’s benefit was obtained jointly?
Where part, or all, of the defendant’s benefit has been simultaneously obtained jointly with one or more others, then the enforcement of payment of the specified amount required to be paid by the confiscation order may be limited to reflect recoveries from those other persons. For that reason the court needs to identify jointly obtained benefit when the confiscation order is made.
Q5. What is the defendant’s available amount?
In practice the defendant may regard this as the most important question of all because in many cases the amount he will be required to pay is based on his available amount. But his available amount may be more than the amount he has available because it will include, for example, his share in the equity of the home which he owns and may also include the value of gifts he has made – perhaps years earlier.
Q6. What amount should the defendant be required to pay?
Typically the defendant will be required to pay the lower of his benefit or his available amount. This is referred to as the ‘recoverable amount’. But sometimes he will be required to pay only a sum less than the ‘recoverable amount’ because the court considers that a larger payment would be ‘disproportionate’.
Q7. How much time should the defendant be allowed to make payment?
The court may require immediate payment, but this will be unrealistic where an asset, such as a house, has to be sold. The court is permitted initially to postpone by up to 3 months the payment deadline for all, or part, of the amount required to be paid. A further postponement of up to a further 3 months may be allowed on application to the Crown Court.
Q8. How long should the default sentence be?
A table of MAXIMUM default sentences is given in s35(2A) PoCA 2002, but these are very broad bands. The court has to fix the default sentence when making the confiscation order. Broadly speaking, the larger the amount required to be paid – the longer the default sentence; but the court does have wide discretion. It may prove difficult subsequently to vary the length of the default sentence when the amount required to be paid is varied under s23 or s22.
So there are just those 8 questions?
Sadly – or perhaps fortunately – there are a lot of subsidiary issues and questions which the court, or the parties, will need to resolve in the course of confiscation proceedings. Bartfields Forensic Accountants are very experienced and have assisted in numerous confiscation cases in Crown Courts throughout England and Wales.
Our contact details are here.
(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.)