Confiscation Proceedings and Civil Recovery

Abstract

Abstract Confiscation proceedings as a form of restitution are examined in the Proceeds of Crime Act 2002 (POCA). The objective and effect of confiscation proceedings is draconian in nature. However, since a confiscation order is not a penalty, but a civil debt, a number of the safeguards surrounding the criminal trial process do not apply. The Crown Court must proceed with a POCA confiscation hearing if a defendant is convicted of an acquisitive crime, and either the prosecutor has asked for the court to proceed or the court believes it is appropriate to do so. A restraint order can be made under section 41 POCA prohibiting a person or persons from dealing with their assets, wherever located, so as to prevent dissipation pending the outcome of an investigation or criminal case. There is no need to invoke the concept of abuse of process’ in the making of confiscation orders: section 6 POCA requires any order to be ‘proportionate’. If a confiscation order is required, the court proceeds to calculating the benefit obtained by a defendant either by way of their criminal conduct, or as a result of a criminal lifestyle. Where there was a joint obtaining of benefit it would be disproportionate to make an order against two or more persons the result of which would be at least the ‘double’ recovery of the benefit obtained. However, it is not disproportionate where such an order is made for two or more defendants to serve the entire default term where no payments are made in satisfaction of such an order. In addition to criminal confiscation proceedings, state enforcement authorities can apply under Part 5 POCA to the High Court for civil recovery orders.