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Confiscation Orders under the Proceeds of Crime Act 2002 - BPTC Advanced Criminal Litigation Notes
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Confiscation Orders under the Proceeds of Crime Act 2002 - BPTC Advanced Criminal Litigation Notes
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ADVANCED CRIMINAL LITIGATIONTopic 5: Confiscation Orders under the Proceeds of Crime Act 2002
Confiscation Deprives convicted defendants from keeping the proceedings of crime
So after convicted or pleads guilty, the Prosecution asks that Confiscation proceedings are
commenced against him.
Court then decides:
• How much has D benefited?
• The value of his current assets + cash (‘available amount’)
The court confiscates his assets +/or cash to the value of how much he made (‘the
recoverable amount’). If there is a shortfall, he owes that, until it is paid.
• If he doesn’t hand over his current assets +/or cash, he goes to prison (judge sets
term in default) but the order remains as it is (still owe the money, doesn’t wipe out
the order going to prison).
Relevant sections:
• S6-91 PCA 2002
• May [2008] UKHL 28, Green [2008] UKHL 30, Jennings [2008] UKHL 32.
• Waya [2012] UKSC 51 overall court must have regard to overall HRA when passing
confiscation order
Calculating benefit:
D has criminal lifestyle criminal conduct provisions, but rarely particular criminal conduct
provisions of the act.
D does not have criminal lifestyle particular criminal conduct only provisions of the act.
1. Work out criminal lifestyle or not
Does D have a Criminal lifestyle? (s.75)
• If convicted of an offence in Sch 2 of the act or if you are part of a course of criminal
activity or an offence committed over at least 6 months and D has benefited from
the conduct which constitutes the offence and that benefit exceeds £5000= criminal
lifestyle
2. Which provision if so
If does have criminal lifestyle, court applies the general criminal conduct provisions
(s.76(2))
, ADVANCED CRIMINAL LITIGATION
• Criminal conduct= anything D has benefited from at any time.
• Apply the assumptions in s.10-
- Any property transferred to the D at any time was gained by general criminal
conduct (anything you have got as a D is now up for grabs e.g. D’s house)
- Any property held after the day of conviction was gained by general criminal
conduct
- Any expenditure was met from property obtained by general criminal conduct
- Any property obtained is free of any other interests in it
• Court must apply this regime unless there is a risk of serious injustice
• Assumptions are compliant with the HRA (Rezvi [2002] and Benjafield [2002])
If don’t have a criminal lifestyle or you do but court decides not to use general conduct
provisions, use the particular criminal conduct provisions (S.76(3)):
• Criminal conduct which-
- Constitutes the offence
- Constitutes offences which he was convicted in the same proceedings
- Constitutes offences taken into consideration
e.g. if committed benefit fraud in sum of £5,000, then particular criminal conduct is £5,000.
Tainted gifts (if D gives away everything)
• Anything gifted or sold at a significant undervalue
• SO, if you have a criminal lifestyle:
- Any gift in the 6 years proceeding conviction can be considered
- At any time where the item was received as a product of general criminal
conduct.
• Not a criminal lifestyle a gift made after the date on which the offence was
committed.
3. Determine the benefit figure
• May/Jennings/Green ‘Obtained’ is to be given its ordinary meaning. So, where D’s
had jointly obtained property (e.g. £3m), there is no need to apportion benefit, could
say each benefited £3m.
• The facts of each case will determine whether the D has actually obtained anything
e.g. prior to these cases, thought if e.g. drug courier, for a fee of £200, that your
benefit was £200, and for a period of time you benefited because you were holding
onto the drugs of e.g. £10,000. BUT clear here now, that your benefit is £200, you
have not seen benefit of the £10,000 drugs, that’s someone else’s benefit.
• The judge must make a determination unless parties agree on a figure.
3. Determining the available amount
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