Confiscation Foundation

Question 1

What is the purpose of confiscation proceedings?

Answer 1

To deprive a defendant of the financial benefit he has obtained from criminal conduct

Question 2

What 2 conditions must be satisfied for the Crown Court to proceed under s6 POCA?

Answer 2

s6(1) D falls within one of the following:

a) convicted before the Crown Court
b) committed for sentence
c) convicted in the Mags Ct and committed for confiscation.

AND

s6(2) The prosecutor asks the court to proceed or the court believes it is appropriate to do so.

Question 3

What must the court first decide when making a confiscation order under s6(4)?

Answer 3

Does the defendant have a criminal lifestyle

Question 4

If the court decides D has a criminal lifestyle what must the court go on to do?

Answer 4

The court must decide if D has benefited from his general criminal conduct. Then it calculates the benefit using the assumptions.

Question 5

What happens if D does not pay the confiscation order?

Answer 5

Action may be taken to enforce payment through the appointment of an enforcement receiver. The Magistrates Court has enforcement methods such as warrants of commitment or attachment of earnings or monthly payment orders.

Question 6

What happens if D does not have the means to pay both a confiscation order and a compensation order?

Answer 6

s13(6) specifies the court must direct the amount payable under the priority order (compensation) is to be paid out of any sums recovered under the confiscation order.

Question 7

Can a compensation order be made after a confiscation hearing

Answer 7

NO! So prosecutors must remember to ensure that the compensation order is made at the confiscation hearing as it cannot be made afterwards.

Question 8

If the court decides D does not have a criminal lifestyle what must the court go on to decide?

Answer 8

The court must go on to decide if D has benefited from his particular criminal conduct.

Question 9

If the court decides D has benefited from general or particular criminal conduct what must it then do?

Answer 9

s6(5) states the court must then decide the recoverable amount and make a confiscation order requiring him to pay that amount.

Question 10

Does the court have any discretion in making a confiscation order?

Answer 10

Only in some limited circumstances such as where a victim of criminal conduct has started or intends to start civil proceedings against the defendant.

Question 11

What is the burden of proof under s6(4) criminal lifestyle and s6(5) the recoverable amount?

Answer 11

The balance of probabilites

Question 12

How can it be proved that D has a criminal lifestyle?

Answer 12

S75 states D has a criminal lifestyle if the offence satisfies any of the following conditions:
a) it is specified in schedule 2
b) it constitutes conduct forming part of a course of criminal activity
c) it is an offence committed over a period of at least six months and D has benefited from the conduct which constitutes the offence.

Question 13

When does a defendant’s conduct form part of a course of criminal activity?

Answer 13

s75(3) conduct forms part of a course of criminal activity if D has benefited from the conduct and

a) In the proceedings in which he was convicted he was also convicted of 3 or more OTHER offences (i.e. at least 4 offences.)

OR

Convicted of 2 separate offences in the 6 years before proceedings commenced.

Question 14

What is general criminal conduct?

Answer 14

General criminal conduct is ALL the defendant’s criminal conduct. This route gives the court the widest ability to look into the criminal affairs of a defendant and assess his benefit.

Question 15

What is particular criminal conduct

Answer 15

Particular criminal conduct is all Ds criminal conduct from the proceedings in which he has been convicted. It includes the offence/s of which he was convicted and any TICs.

Question 16

What is criminal conduct?

Answer 16

Criminal conduct is conduct which constitutes an offence in England and Wales or would if it occurred within England and Wales.

Question 17

What is the recoverable amount

Answer 17

The recoverable amount equals the amount of the Ds benefit from his criminal conduct.

Question 18

What happens if a D shows the available amount is less than the benefit?

Answer 18

If D shows the available amount is less than the benefit then the recoverable amount is

a) the available amount
OR
b) a nominal amount if the available amount is nil.

Question 19

What is the available amount?

Answer 19

The available amount =
value of Ds interest in free property less value of any priority obligations + value of tainted gifts

Question 20

What is a tainted gift?

Answer 20

s78 - A tainted gift is any property transferred rom the D to another after the relevant day for a consideration whose value is significantly less than the value of the property at the time of the transfer.

Question 21

What is the ‘relevant day’ when considering a tainted gift?

Answer 21

If the court has decided D has a criminal lifestyle the relevant day will be any time within the previous 6 years.

If the court has decided D does not have a criminal lifestyle the relevant day will be any point after the date on which the offence concerned was committed.

Question 22

What is the standard of proof in relation to criminal lifestyle, the calculation of benefit and the calculation of the recoverable amount?

Answer 22

The balance of probabilities i.e. it is more likely than not

Question 23

If the court decides D has a criminal lifestyle what must it then do?

Answer 23

The court must make the four assumptions to decide whether D has benefited from his general criminal conduct and to decide the amount of the benefit.

Question 24

What is the 1st assumption?

Answer 24

The 1st assumption is that property transferred to D at any time after the relevant day (6 years prior to proceedings) was obtained by him
a) as a result of general criminal conduct
b) at the earliest time he appears to have held it.

Question 25

What is the 2nd assumption?

Answer 25

The 2nd assumption is property held by D at any time after the date of conviction was obtained by him
a) as a result of general criminal conduct and
b) at the earliest time he appears to have held it.

Question 26

What is the 3rd assumption?

Answer 26

Expenditure incurred by D at any time after the relevant day (six years prior to proceedings) was met by him from property obtained by him as a result of his general criminal conduct.

Question 27

What is the 4th assumption?

Answer 27

The 4th assumption is that for the purposes of valuing any property obtained (or assumed to have been obtained) by the D, he obtained it free of any other interest.

Question 28

What is the consequence of a D failing to comply with a court order to provide specific information under s18

Answer 28

If the D fails to comply with a s18 order without reasonable excuse the court may draw such inferences as it believes appropriate.

Question 29

What is a statement of information?

Answer 29

The statement of information is drafted by the FI based on his/her enquiries. It is a statement of matters that the prosecutor believes are relevant in deciding:
- Whether the defendant has a criminal lifestyle and if not whether D benefited from his particular criminal conduct.
- Whether he has benefited from his general criminal conduct
- His benefit from such conduct.
- Must also include information relevant to helping the court make the required assumptions – or information to decide that it must not make an assumption.

Question 30

What are the prosecutor’s duties on receipt of a s16 statement from the FI?

Answer 30

1. check that statement to ensure it contains all the information needed to assist the judge
2. check the position of any compensation claims in particular
3. Conduct and record a disclosure review, and
4. Consider if it is appropriate to continue applying for confiscation.

Question 31

What if a 3rd party holds an interest in the property

Answer 31

If a 3rd party holds an interest in property the court may determine the extent of the defendant’s interest in the property at the time the confiscation order is made.

The court must give the 3rd party a reasonable opportunity to make representations.

Question 32

What are the assumptions?

Answer 32

Assumption 1
Property transferred to D at any time after the relevant day (six years prior to proceedings) was obtained by him a) as a result of general criminal conduct, and b) at the earliest time he appears to have held it.

Assumption 2
Property held by D at any time after the date of conviction was obtained by him a) as a result of general criminal conduct, and b) at the earliest time he appears to have held it.

Assumption 3
Expenditure incurred by D at any time after the relevant day (six years prior to proceedings) was met by him from property obtained by him as a result of his general criminal conduct.

Assumption 4
For the purposes of valuing any property obtained (or assumed to have been obtained) by the D, he obtained it free of any other interest.

Question 33

What next after s16 Statement of Information

Answer 33

If D does not accept any allegation in the SofI he will have to give particulars of any matters he proposes to rely on s17.

If D fails to comply he may be treated as having accepted the prosecution allegations.

If D accepts an allegation the court may treat this as conclusive of the matter.

Question 34

What happens if the confiscation proceedings are not postponed or dealt with before sentence?

Answer 34

Then no confiscation proceedings can take place! Therefore it is vital to make a formal application to postpone confiscation proceedings before sentence.

D can be sentenced during the postponement but not fined as this may prejudice the making of a confiscation order.

Question 35

What should be considered with a basis of plea?

Answer 35

Acceptance of a limited basis may restrict the prosecution’s ability to ask the court to apply the criminal lifestyle assumptions or may prevent confiscation at all.

Consider para 9.2 of the Code for Crown Prosecutors - should only accept the defendant’s plea if: It enables the court to make a confiscation order in appropriate cases, where a defendant has benefitted from criminal conduct

Basis of plea should be in writing.

Question 36

Give 3 examples of alternative charges/basis that could restrict confiscation

Answer 36

1. Acceptance of s329 as opposed to s327 prevents application of the lifestyle assumptions because s329 is not a schedule 2 lifestyle offence.
2. Accepting a fraud spanned 5 months rather than > 6months reduces scope of the benefit calculation from general criminal conduct (past 6 years) to particular criminal conduct (current offence only.)
3. Accepting possession rather than PWITS prevents confiscation as possession is not an acquisitive crime.

Question 37

The Confiscation Order

Answer 37

1. Is made in a sum of money in sterling. Value of assets overseas to be converted into sterling using the exchange rate on the day of the confiscation hearing.
2. Confiscation is enforced like a fine. The Crown Court fixes the time to pay and a period of imprisonment in default.