The Law Commission has proposed significant changes to the confiscation regime. Niall Hearty of Rahman Ravelli assesses them.

The Law Commission’s proposals for overhauling the proceeds of crime system are focused on giving courts greater powers to enforce confiscation orders and seize offenders’ assets.

The Commission’s recently-published recommendations are the result of a Home Office-commissioned review. It is now up to the government to consider and respond to the recommendations.

The Commission says its proposals would make the confiscation regime under Part 2 of the Proceeds of Crime Act 2002 faster, fairer and more effective. It has said the system is currently inefficient and complex, with weak enforcement mechanisms restricting its ability to consistently recover criminal funds.

According to the Commission, adopting its recommendations would strengthen enforcement powers and may result in millions of pounds of additional funds being recovered from offenders each year.

The recommendations are:

  • Accelerate confiscation proceedings by establishing strict timetables for hearings, which take immediate effect once a defendant has been sentenced for their crime.
  • Give courts the power to impose “contingent enforcement orders” at the time that a confiscation order is made. This would mean that if a defendant does not pay back the proceeds of a crime within a set time, their assets could instead be taken to recover the proceeds of crime.
  • Strengthen restraint orders by placing the risk of dissipation test on a statutory footing and clarifying what could trigger the use of these orders.
  • Enhance the response of law enforcement agencies by improving police training and devising a national asset management strategy.
  • Update the provisions that factor in a defendant’s criminal lifestyle when assessing their benefit from crime. Confiscation from defendants deemed to have a criminal lifestyle would also include gains from their wider criminal conduct and a defendant would have to commit fewer offences to be deemed to have a “criminal lifestyle’’.
  • Give greater consideration to the defendant’s ability to pay, so that enforcement can be more effective. Defendants would have to provide clearer and more detailed evidence of their financial position if they claim to be unable to pay their order.
  • Create more flexible tools to ensure better enforcement, including giving judges the power to adjust the funds that must be paid back by a defendant, depending on their personal circumstances. This, the Commission believes, would avoid situations where there is no realistic prospect of recovering the full amount of the confiscation order.
  • Set out a clear statutory objective to govern the new confiscation regime. This would provide clarity on the purpose of the regime - namely, to deprive defendants of their benefit from criminal conduct - and move away from any previous emphasis on punishment.

Conclusion

The Commission has made it clear that it believes the current confiscation regime is ineffective. It has said an extra £8 million a year could be taken back from criminals if the regime was reformed.

Many legal commentators will agree that the current regime under Part 2 is inefficient and, therefore, not fit for purpose. The Commission’s own claim that the “confiscation regime can be draconian” is one that has been repeated by practitioners for many years now. It can only be hoped that the proposed recommendations will go some way to making the confiscation process fairer and more efficient, after they have been debated in Parliament and a draft bill proposed and enacted.