Confiscation law is one of the most complicated areas of criminal law. Roger Sahota is one of the leading criminal solicitors in this narrow field. We have prepared this guide for clients who are concerned at what will happen if they are involved in confiscation proceedings after their conviction.
This guide has been prepared in response to many frequently asked questions from of our confiscation clients we have prepared an overview of the confiscation process under POCA 2002.Itr predates the Serious Crime bill 2015. It is a general gude to the law and procedure - for specific advice on your individual case please contact a lawyer.
The main features of the confiscation process are:-
1. As soon as a criminal investigation begins, the Police may apply for
• a restraint order to freeze a defendant’s bank accounts and other assets
• a disclosure order for him to reveal all his property
• a detention and forfeiture order for any cash seized.
• Cash seized and restrained property may be later be included in the terms of a confiscation order.
2. The defendant’s conviction in the Crown Court (including committal for sentence proceedings) triggers the POCA jurisdiction. The confiscation process begins as soon as the prosecutor requests it or the court believes it to be appropriate. If the Prosecution requests it the court must proceed.
3. The defendant is served with a notice to produce information.
4. The Financial Investigator serves a statement setting out the Crown’s position once the Defendant has replied to the notice. A financial investigation into all aspects of the defendant’s affairs continues throughout.
5. The court makes a scheduling order for service of statements and evidence from both parties and other directions and sets a date for the final confiscation hearing.
6. At the final confiscation hearing the court will determine the defendant’s
• benefit from criminal conduct
• the recoverable amount and
• the available amount
before making a Confiscation Order.
The calculation of benefit depends on whether the defendant has a criminal lifestyle.
In a criminal lifestyle case, the assumptions apply and the court calculates the benefit from general criminal conduct.
In a non lifestyle case, the court will calculate the benefit from the actual offences, including TIC’s, of which the defendant is convicted – particular criminal conduct.
8. The court determines the recoverable amount, which is the defendant’s benefit from general criminal conduct and/or particular criminal conduct.
9. If the defendant cannot pay the recoverable amount, the court decides what is the available amount that the defendant can pay.
10. The court makes the Confiscation Order.
In doing so, it provides a statement of its findings where it sets out:
• The benefit figure
• The available amount and the recoverable amount
• The sum of the Confiscation Order.
• Time to pay the Order.
• The default sentence that will be served in the event of non payment.
• A schedule of the Defendants assets is attached to the order.
11. If the Confiscation Order is not paid within the time given, enforcement proceedings start in the Magistrates’ Court.
12. If the defendant cannot pay the Confiscation Order, and all other avenues have been exhausted, the Magistrates Court can commit the defendant to serve the default sentence. The default sentence for non payment is consecutive to the sentence imposed for the offence for which the Defendant was convicted.
Both the Prosecution and the Defence have a right to appeal the making of the Order by the Crown Court. The Defence must show that the Order is either manifestly excessive or wrong in principle.
14. The Prosecution has the power to apply to vary to increase the Order in limited circumstances by returning to the Crown Court.
15. The Defence can apply to the court for a Certificate of Inadequacy if they can prove that they have insufficient means to pay the Order. This does not provide the defendant with an alternative means of appeal.