Articles Criminal Regulatory 6th May 2015

Confiscation Regime Toughened Up

The Serious Crime Act 2015 makes significant changes to the Proceeds of Crime Act 2002. The key changes, summarised below, come into force on 1 June 2015.

Interest In Property

New provisions are designed to reduce some of the difficulties that can arise when property needs to be sold in order to satisfy a confiscation order. Under a new section 10A of POCA 2002, the court will be able to determine the extent of another person’s interest in property that is likely to be used to satisfy a confiscation order. The issue would be addressed in the prosecutor’s statement of information (under section 16) and information provided by defendants (under a section 18 order). The Court’s finding as to another’s interest in property would be conclusive.

Time To Pay

A new section 11 is geared towards earlier payment of confiscation orders. The order will have to be paid when it is made unless the court is satisfied the full amount cannot be paid that day, in which case it may order that any amount that cannot be paid will be paid within a period not exceeding 3 months (currently the initial time limit is 6 months). Any extensions of time must not exceed 6 months (currently the time limit for extensions is 12 months).

Compliance Orders

Under section 13A, the court will be able to make “such order as it thinks is appropriate” to ensure that a confiscation order is effective. In particular, the court must consider whether to prevent the defendant from travelling outside the United Kingdom (subsection (4)). On the face of the legislation, there are no limits as to the kind of restrictions that may be imposed. No doubt, case-law will be generated in due course as to the necessity and proportionality of terms imposed.

Restraint Orders

Subtle but significant changes are made to sections 40 to 42. The hurdle for applicants has been lowered slightly: there will need to be “reasonable grounds to suspect”, rather than “reasonable grounds to believe”, that an alleged offender has benefitted from criminal conduct. On the other hand, those subject to orders may be comforted (slightly) by a new requirement that applicants report on progress of the investigation as directed by the court. The purpose of this must be to keep investigators on their toes when people are subject to restraint orders for prolonged periods of time.

Other Matters

There will be new procedures in place for where a defendant has died (section 25A), or has absconded before conclusion of his trial, previously not expressly catered for (section 27 as substituted). There will also be increases in the maximum default sentences that may be imposed when an order is not satisfied (section 35A as amended). The above whistle-stop tour of the main provisions shows that there are far-reaching changes, generally designed to fill gaps (better 13 years’ late than never) and to tighten up compliance. Practitioners will need to be prepared for these changes, which will affect every stage of the process, from restraint, through confiscation proceedings to the enforcement stage.

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