The Proceeds of Crime Act legislation is the most commonly used confiscation law. It is often described as draconian. Interestingly, the legislative background demonstrates that it was deliberately drafted to clamp down hard on offenders seen to exploit a laxity in the law to live off the proceeds of crime. .
It has its origins in the recommendations of the Hodgson Committee chaired by Mr. Justice Hodgson in 1985. Parliament was prompted to take action partly by public outrage after the notorious case of R v Cuthbertson 1984 ER401. Police traced assets in excess of £750,000 belonging to a group of criminal defendants who had been convicted of conspiracy to supply and produce LSD. The courts did not have the power to order the forfeiture of the money and it had to be returned to them as it deemed to remain their property.
New legislation was inevitable to plug this loophole and to ensure that serious criminals involved in drug trafficking could have their profits confiscated. The old law was not seen as an effective deterrent.
The first specific legislation dealing with confiscation was passed on the 10th January 1987. The Drug Trafficking Offences Act 1986 empowered the courts to seize the proceeds of drug trafficking. In 1988 further legislation was introduced to extend this power to encompass other non drug related indictable offences. This was the Criminal Justice Act 1988.
Further legislation implemented in the 1990’s produced a more sophisticated confiscation regime enabling prosecutors to target hidden assets and to order the payment of interest on unpaid sums. The Drug Trafficking Act 1994 consolidated parts of the earlier legislation.
The election of a new Labour Government in 1997 prompted renewed action. The Cabinet Offices Performance and Innovation Unit began work in 1998 on a report published in June 2000 entitled Recovering the Proceeds of Crime. The report concluded that the existing legislation was not fit for purpose;
• The enforcement authorities were only intercepting a small proportion of the proceeds of drug trafficking that was entering the country.
• Only 50% of the Confiscation Orders made were ever enforced.
• Confiscation Orders were only made in 1/5th of drug trafficking cases.
On the 24th March 2003 the Proceeds of Crime Act was enacted.
It was intended to replace and improve on the pre existing legislation. One of the main objectives for the legislators was to improve or restore public confidence in the confiscation system.
POCA includes draconian measures aimed at curbing:-
• Money laundering activities
• Depriving criminals of the proceeds of their criminal conduct
• New powers of cash seizure
• An integrated regime and new regime for the enforcement authorities to apply for Restraint Orders.
• A reporting system for financial professionals aimed at tackling money laundering.
POCA extended the range of relevant financial crime and other offences that confiscation could be applied for.
It also simplified the law, providing for one regime where all hearings conducted in the Crown Court and appeals dealt with in the Court of Appeal and Supreme Court. Previously, under the CJA and DTA, many applications under the Act had to be made to the High Court.
Since the Proceeds of Crime Act came into force in 2003 there has been a huge upsurge in confiscation proceedings. A number of Government and Regulatory Agencies can apply for confiscation after a successful Prosecution. Some of the money recovered from Defendants is retained and can be used towards their operating costs.