What is Confiscation?
Following a conviction for an offence which has generated proceeds of crime, i.e illegally gained wealth, a defendant will usually be subject to confiscation proceedings. The confiscation procedure is governed by the Proceeds of Crime Act 2002 and is a draconian regime which often places a large financial burden on the defendant. To make things more difficult, in a lot of cases the defendant will have to try and satisfy the confiscation order from within prison.
The initial stage of confiscation is determining the 'benefit figure' which is basically the amount the court decides the defendant has gained during the criminal offending. In certain circumstances the court can decide that a defendant has a 'criminal lifestyle'. This can occur in particular offences, such as money laundering or drug dealing; where the defendant has been convicted of multiple offences or in the case of a defendant whose offending has occurred over a period of at least 6 months.
The starting point is that the benefit figure will reflect the financial benefit from the particular criminal offending, for example the £10,000 made from a drug sale. However, if a defendant is deemed to have a criminal lifestyle, the court can take into account all of the defendant's assets and expenditure over a 6 year period and include them in the benefit figure unless the defendant can show that the funds came from a legitimate source. So if the defendant bought a car 4 years previously and can't show where the cash came from, this amount will be added to the benefit figure. If the defendant received a bank transfer 2 years previously and can't remember where it came from, this will be added to the benefit figure.
Once the benefit figure has been ascertained, the court must decide on the 'recoverable amount'. This amount is often equal to the benefit from the offending. However, if the defendant does not have enough assets to pay the full amount, the court will make an order for a lower figure. In order to make this decision, the prosecution undertakes a full forensic examination of the defendant's accounts and records to see what is available. The confiscation order requires a monetary payment, rather than handing over particular assets. For example if the defendant owns a car worth £5,000, the defendant will need to sell the car to try and raise the £5,000 to pay the order.
The court can allow a defendant up to 6 months to pay the confiscation amount. If the defendant is unable to pay it in full, the court can impose a period of imprisonment. The higher than confiscation amount, the higher the prison sentence. Even if the defendant serves a prison sentence, this does not mean that the debt is written off; it must still be paid in the future and with additional interest.
A defendant can apply to the Crown Court to vary the amount of a confiscation order, if the available amount that they have to pay the order is inadequate. The court must then make a fresh calculation of the available amount as of that date. If the court agrees that the available amount is inadequate, it can substitute a smaller amount that it considers just.
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