Dredging up the past: prosecutors seeking to vary confiscation orders years later
A confiscation order can be made after a defendant is convicted of certain criminal offences. It requires the defendant to pay back the ‘benefit’ that they have obtained from their criminal behaviour. Such an order is effectively capped at the level of a defendant's available assets.
Under Section 22 of the Proceeds of Crime Act 2002 (‘POCA’) the Court has a discretion to adjust the amount of a confiscation order in circumstances where it finds that assets are now available and where it is just to do so (equally it can reduce the amount under section 23). This discretion is not time-barred.
In recent years it has become commonplace for prosecutors to dig up and seek to vary old confiscation orders, often several years after the original order was made. One reason for this is because historically "benefit figures" were often very high and, significantly, higher than a defendant's available assets. The following is a typical example.
It is 2008. Wayne has been convicted as part of a large drugs conspiracy. Wayne’s involvement in the conspiracy was limited to being one of the couriers and it is accepted by the prosecution that he had a ‘lesser role’ than the other defendants. However, in confiscation proceedings the Court does not apportion between defendants in a criminal conspiracy – each defendant is jointly and severally liable for the benefit figure regardless of their level of involvement.
Confiscation proceedings begin and the prosecution submit a "Section 16 Statement" asserting that the benefit figure is £800,000. Wayne is horrified. His available assets consist of £1,000 in a savings account.
The Section 16 Statement should represent the start of a bargaining process. However, often confiscation proceedings are viewed as an afterthought and many defendants lawyers do not make any effort to challenge the figure claimed by the prosecution. As such, benefit figures are often agreed far higher than they should be.
Wayne’s lawyer advises him not to be concerned about the benefit figure as it is the available assets that are important – in this case the £1,000 of savings. Wayne is very relieved and agrees the benefit figure, eager to put the case behind him. The judge has no interest in intervening where the parties have reached an agreement. A confiscation order is made for £800,000 and Wayne is ordered to pay £1,000, which he duly pays.
Fast forward ten years. It is 2018. Wayne is married with two young children and owns a house with his wife. He runs his own painting and decorating business. The house was purchased for £180,000, with a mortgage for £160,000, but due to housing appreciation the house is now worth £300,000. Wayne’s half share of the equity in the house is therefore £70,000. Wayne also now has a van worth £2,000 that he uses for work. He has no other assets. Under section 22 of POCA the prosecution can apply to the court to order Wayne to pay a further £72,000 – representing his current available assets. This sum is payable immediately. If Wayne does not make payment, the court can impose a default custodial sentence. Default sentences are handed down at the time the original confiscation order is made and fall within one of four bands. The default sentence for a £72,000 confiscation order (indeed, any confiscation order between £10,000-£500,000) is a maximum of five years' imprisonment. If the confiscation order amount exceeds £1 million the maximum default sentence is 14 years.
So what can Wayne do? It is possible for Wayne to challenge the application on the basis that the variation of the order would be disproportionate and would infringe upon his human rights but this is no mean feat. It is therefore vital that a benefit figure is properly reviewed by defence lawyers prior to agreement. Otherwise defendants could find themselves being pursued several years later by prosecutors for a crime that they had hoped was firmly behind them. As defendants like Wayne can testify, confiscation proceedings should never be an afterthought.
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Articles are intended as an introduction to the topic and do not constitute legal advice.