Posted: 11 / 04 / 2021

There will be frequent occasions on which, following the conviction of a defendant, it would have been open to the court to make a confiscation order – but no confiscation order was made. This may be because the Crown Court has not been asked by the prosecutor to consider confiscation, and has not done so of its own volition – or, less frequently, it may be that the court has gone through a confiscation procedure but has concluded that the defendant’s benefit is nil.

But what is the position if, at a later date, new information comes to the prosecutor which was not available to him previously and, in the light of that, he wants to return to the Crown Court and apply for a confiscation order to be made against the defendant based on that earlier conviction?

In that event, within certain limits, the court can reconsider making a confiscation order under s19 or s20 Proceeds of Crime Act 2002.

Where confiscation has not previously been considered

Where the court has not previously considered confiscation then s19 is the relevant section.

In essence this provides that where new information is now available to the prosecutor, which was not available to him at the time of the defendant’s conviction or, if later, at the time the court decided not to consider confiscation (which is referred to as ‘the relevant date’ – not to be confused with the ‘relevant day’ referred to in connection with the statutory assumptions) and:

  • the prosecutor makes an application to the court within 6 years of the date of conviction, and
  • in the light of that new information the court now believes it is appropriate to proceed to confiscation,

it may do so.

Note that under s19 it is not necessarily the case that the new information received by the prosecutor relates to the defendant’s benefit, it may simply relate to the defendant’s available amount.

The court uses the normal confiscation mechanisms, but with some modifications.  So the court may order the defendant to supply information under s18; the prosecutor will make a statement of information under s16; the defendant will be required to respond to that under s17; the usual rules about the benefit of particular criminal conduct will apply; if the defendant has a ‘criminal lifestyle’ the statutory assumptions under s10 will apply (with some modifications); the court will determine the defendant’s ‘benefit’ and his ‘available amount’; the defendant’s ‘recoverable amount’ will normally be the lower of his benefit and his available amount; the court will consider proportionality in the usual way; and finally the court can make a confiscation order and set a default sentence in the usual way.

However there is a ‘twist’!

The thrust of s19 is that the court will be seeking to determine (in the light of the new information) the defendant’s benefit at the ‘relevant date’ – but will be determining the defendant’s current available amount today.  The court looks at the defendant’s benefit then and his available amount now.

So in determining the defendant’s benefit the court will take account of his conduct before the ‘relevant date’ (but not on or after that date) and property obtained by the defendant before the ‘relevant date’.

The court will also, in considering the defendant’s benefit, be permitted to consider property obtained by the defendant on or after the ‘relevant date’ but only if it was obtained as a result of, or in connection with, conduct which occurred before that date.

The statutory assumptions are also modified so that they do not cover property transferred to the defendant on or after the ‘relevant date’, or expediture incurred by the defendant on or after the ‘relevant date’, or property first held by the defendant on or after the ‘relevant date’.

Ultimately the court has a discretion under s19 to fix the recoverable amount at such amount as the court believes is just (in contrast with the position in routine confiscation proceedings – in which the court normally has no such discretion).

An example under s19

An example may make this clearer.

Julian was convicted in the Magistrates’ Court on 12 March 2018. The offence concerned the sale of fake ‘Nike’ trainers at a car boot sale, contrary to s92(1) Trade Marks Act 1994.  Julian was committed for sentence in the Crown Court and sentenced on 16 May 2018.  He had been subject to proceedings in the Magistrates’ Court which had commenced with the issue of a summons on 8 November 2017.  This is a Schedule 2 offence so Julian has a ‘criminal lifestyle’.  However at the time it appeared that Julian had no assets and the prosecutor made no application with regard to confiscation when Julian was sentenced on 16 May 2018.

The prosecutor has now discovered that Julian has since 2015 been the beneficial owner of a property at 25 Acacia Gardens, Broadminster which is held in trust for him by his uncle.  The prosecutor was unaware of this at the time of Julian’s conviction and sentence.

The prosecutor also discovers that Julian’s father gifted him £20,000 on 2 February 2019, which was Julian’s 25th birthday.

The prosecutor can now make an application to the Crown Court under s19 (within 6 years of the date of conviction and so no later than 11 March 2024).  The Crown Court will then consider Julian’s benefit as at 16 May 2018 (which is the ‘relevant date’).  In doing so it will apply the first and third s10 assumptions (property transferred to the defendant and expenditure incurred by the defendant) to a period commencing immediately after the ‘relevant day’ (which is 9 November 2011) and ending immediately before the ‘relevant date’ (which is 16 May 2018).  The second assumption will apply to any property which was held both (i) after 12 March 2018 and (ii) before 16 May 2018 (because that is property held after the date of conviction but excluding property first held on or after the ‘relevant date’).

The court will also consider Julian’s current available amount on the day it makes the confiscation order.

So the value of Julian’s beneficial interest in 25 Acacia Gardens will be caught by the statutory assumptions (as property held both after the date of conviction and before the ‘relevant date’) – but subject of course to rebuttal by Julian in the normal way.

The £20,000 gifted to Julian in 2019 is not subject to the statutory assumptions and so has no impact on Julian’s benefit – however the money, if he still has it, will form part of Julian’s available amount for confiscation purposes along with the interest he still holds in 25 Acacia Gardens.

Another example under s19

A slightly more controversial example illustrates the potential scope of s19.

Jane was convicted on 20 May 2015 of the theft of £130,000 from her employer over a period from March 2010 to January 2014.  She had a gambling habit and had lost all the money and had no assets.  No confiscation proceedings were considered at the time of her conviction and sentence.

In June 2020 Jane won £1,000,000 on the National Lottery.

The prosecutor may apply to the court under s19 (within 6 years of the date of conviction and so no later than 19 May 2021) for the court to consider confiscation proceedings in relation to the earlier conviction on the basis of information about Jane’s win – which is evidence which was not available to the prosecutor at the time of Jane’s conviction and sentence.

Note that in Jane’s case it would not be possible for the prosecutor to make an application under s22 following Jane’s lottery win, because no confiscation order has previously been made against Jane.

Where the benefit has previously been found to be nil

Where the court has previously considered confiscation but found the defendant’s benefit to be nil, then s20 is the relevant section.

In essence this provides that where new information is now available to the prosecutor, which was not available to him at the time of the court’s decision that the defendant’s benefit was nil and:

  • the prosecutor makes an application to the court within 6 years of the date of conviction, and
  • in the light of that new information the court concludes that the defendant’s benefit at the time of its original decision was greater than nil,

the court may reconsider the making of a confiscation order.

Note that under s20 it is necessarily the case that the new information received by the prosecutor relates to the defendant’s benefit.

The court uses the normal confiscation mechanisms, but with some modifications.  So the court may order the defendant to supply information under s18; the prosecutor will make a statement of information under s16; the defendant will be required to respond to that under s17; the usual rules about the benefit of particular criminal conduct will apply; if the defendant has a ‘criminal lifestyle’ the statutory assumptions under s10 will apply (with some modifications); the court will determine the defendant’s ‘benefit’ and his ‘available amount’; the defendant’s ‘recoverable amount’ will normally be the lower of his benefit and his available amount; the court will consider proportionality in the usual way; and finally the court can make a confiscation order and set a default sentence in the usual way.

However there is a ‘twist’!

The thrust of s20 is that the court will be seeking to re-determine (in the light of the new information) the defendant’s benefit at the date of its original decision that his benefit was nil – but will be determining the defendant’s current available amount today.  The court looks at the defendant’s benefit then and his available amount now.

So in determining the defendant’s benefit the court will take account of his conduct before the date of its original decision (but not on or after that date) and property obtained by the defendant before the date of its original decision.

The court will also, in considering the defendant’s benefit, be permitted to consider property obtained by the defendant on or after the date of its original decision but only if it was obtained as a result of, or in connection with, conduct which occurred before that date.

The statutory assumptions are also modified so that they do not cover property transferred to the defendant on or after the date of the court’s original decision, or expediture incurred by the defendant on or after that date, or property first held by the defendant on or after that date.

Ultimately the court has a discretion under s20 to fix the recoverable amount at such amount as the court believes is just (in contrast with the position in routine confiscation proceedings – in which the court normally has no such discretion).

An example under s20

An example may make this clearer.

In February 2019 Harry was arrested at Heathrow airport where he was about to board a flight to Dubai.  In Harry’s suitcase was £100,000 in £50 notes.  On 24 February 2019 Harry was charged with a money laundering offence of attempting to remove criminal property from England and Wales.  Harry was convicted on 12 September 2019 and sentenced on 4 November 2019.  On 17 June 2020 confiscation proceedings were concluded on the basis that Harry had a ‘criminal lifestyle’ (as he had been convicted of a Schedule 2 offence) but his benefit was nil (the monies in the suitcase did not belong to him – he was simply acting as a courier – and he had no other actual or assumed benefit).

In March 2021 the prosecutor receives information that Harry owns a property in Dubai which he had purchased 2018 and that he has a bank account with a bank in Dubai which has been open since 2017 and to which monies have been credited from time to time since then.  None of this information was available to the prosecutor on 17 June 2020 when the court made its original decision.

The prosecutor can now make an application to the Crown Court under s20 (within 6 years of the date of conviction and so no later than 11 September 2025).  The Crown Court will then consider Harry’s benefit as at 17 June 2020 (which is the date of the court’s original decision).  In doing so it will apply the first and third s10 assumptions (property transferred to the defendant and expenditure incurred by the defendant) to a period commencing immediately after the ‘relevant day’ (which is 25 February 2013) and ending immediately before the date it made its original decision (which is 17 June 2020).  The second assumption will apply to any property which was held both (i) after 12 September 2019 and (ii) before 17 June 2020 (because that is property held after the date of conviction but excluding property first held on or after the date of the court’s original decision).

The court will also consider Harry’s current available amount on the day it makes the confiscation order.

So the value of Harry’s property in Dubai will be caught by the statutory assumptions (as property held both after the date of conviction and before the date of the court’s original decision) – but subject of course to rebuttal by Harry in the normal way.

The credits to Harry’s bank account after 25 February 2013 and before 17 June 2020 will also be caught by the statutory assumptions – again subject to rebuttal by Harry.

The value of the property in Dubai (if Harry still has it) and any money currently in the Dubai bank account on the day the court makes the confiscation order will form part of Harry’s available amount for confiscation purposes.

 

This brief article can only provide an outline of the main issues.  Lots more information is available on our website blog HERE or via our recorded webinars HERE.

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David

(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.)