Expert Legal Adviser MILTON FIRMAN asks: What is a Confiscation Order? – Part 1

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The purpose of confiscation proceedings is to deprive the defendant of the financial benefit that he or she has obtained from criminal conduct. To do this the court must decide whether the defendant, has a “criminal lifestyle”. If it decides that he or she does have a criminal lifestyle then Court calculates the benefit from general criminal conduct using the assumptions set out in the Proceeds of Crime Act 2002 (POCA). If it decides that he or she does not have a criminal lifestyle, the Court will instead calculate the benefit from particular criminal conduct (the actual offences of which the defendant is convicted).

Does POCA apply?

Were all of the offences charged or indicted in the proceedings committed after 23 March 2003? If so, then POCA will apply. If not, then the earlier legislation will apply and prosecutors should refer to the guidance on the earlier legislation.

TIC's do not affect the choice of legislation and may date from before or after the commencement of POCA.

The following factors should be considered:

•Does the defendant have a criminal lifestyle as defined in section 75 POCA?
•Has the defendant benefited from general criminal conduct?
•Has the defendant benefited from particular criminal conduct?
•Has a restraint order been obtained? A restraint order can only be obtained to preserve assets for a confiscation order and so confiscation will usually be pursued. If, in exceptional circumstances, the reviewing lawyer takes the view that he/she will not make a confiscation application, the restraint order will have to be discharged urgently.
•The likely amount of the confiscation order, the greater it may be, the more appropriate it will be to require the court to carry out a confiscation inquiry. Nevertheless, it may be sensible to obtain a nil or nominal order in a case where the defendant has benefited, so that an application can be made to increase the sum ordered, if it subsequently becomes apparent that the defendant has property.
•If there is a victim, whether civil proceedings are being pursued. If they are and an injunction is in place freezing all the defendant's assets, confiscation is unlikely.
•Bankruptcy of the defendant. If this has occurred, the defendant's assets will vest in the trustee in bankruptcy, the person responsible for settling the defendant's debts. Confiscation may not be viable.
•The feasibility of enforcing a confiscation order if one were to be made.
•The question of compensation should be left out of account when considering whether to treat a case as a confiscation case. Confiscation is not excluded if a compensation order in the criminal proceedings appears to be likely. Neither does confiscation cut across compensation. There is provision for compensation to be paid out of sums realised under a confiscation order.

Confiscation and forfeiture orders compared

If the court can make a forfeiture order depriving the defendant of the major part of his assets, this is preferable to a confiscation order. A forfeiture order immediately deprives the defendant of title, whereas a confiscation order is only an order to pay a sum of money and is enforced as if it were a fine. If confiscation is invoked the court will not usually be able to make a forfeiture order.

Criminal lifestyle

A person only has a criminal lifestyle (section 75) if the offence satisfies one or more of these tests:

1.it is specified in schedule 2;
2.it constitutes conduct forming part of a course of criminal activity; and/or
3.it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence.
The criminal lifestyle test is not satisfied unless the defendant has obtained benefit of at least £5,000 in the cases of (2) and (3), however, the value of any TIC's in respect of offences started on or after 24 March 2003 will count towards this sum. TIC's in respect of offences committed before 24 March 2003 will only count towards the sum of £5,000 in respect of conduct forming a course of criminal activity based on at least two previous convictions on separate occasions over the last six years (section 75(3)(b)).

Schedule 2 specified offences

The following offences are specified in Schedule 2:

•drug trafficking;
•money laundering offence;
•directing terrorism;
•people trafficking;
•arms trafficking;
•counterfeiting;
•intellectual property;
•pimps and brothels;
•blackmail;
•an offence of attempting, conspiring, inciting, aiding, abetting, counselling or procuring an offence specified in Schedule 2.

A course of criminal activity

A course of criminal activity (see section 75(3)) is when the defendant:

•has been convicted in the current proceedings of four or more offences on the same occasion, each of those offences having been committed after 23 March 2003 and from which he or she has benefited; or
•has been convicted of one offence committed after 23 March 2003 from which he or she has benefited on this occasion and within six years of the start of the most recent proceedings been convicted on at least two separate occasions of an offence, which may have been committed before or after 23 March 2003 and from which he or she has benefited.

CRIMINAL CONDUCT  is conduct, which is an offence in England and Wales or would be an offence if it had occurred in England and Wales (section 76(1)).

It is all of the defendant's criminal conduct. It is immaterial whether the conduct occurred before or after the passing of the Act or whether property constituting a benefit was obtained before or after the passing of the Act (section 76(2)).

Section 76 (3) sets out the definition of particular criminal conduct and it includes the offence(s) of which he or she was convicted, any other offences of which he or she was convicted in those proceedings and offences that the court will take into consideration when deciding his or her sentence.

For more information, here is the deal.  Call Milton on 0161 485 1100 or 07909 900449 at any time or him at milton@miltonfirman.co.uk

Write to him at 24 Byrom Street, Altrincham WA14 2EN.

He will always be pleased to speak to you at any time.  In confidence.  With confidence.

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