The Law Commission’s Consultation on Reform of the Confiscation Regime

Nicola Sharp of Rahman Ravelli details the Commission’s proposals for reform of Part 2 of POCA

In 2018, the Home Office commissioned a Law Commission project with the aim of reforming Part 2 of the Proceeds of Crime Act 2002 (POCA).

The aim of the project was to clarify, simplify and modernise the post-conviction confiscation regime contained within Part 2 of POCA. The review was intended to address problems such as the irregular compensation of victims in confiscation proceedings, the imposition of unrealistic confiscation orders, the confiscation regime’s ineffective incentives and sanctions, the complexity of relevant legislative provisions and courts’ insufficient enforcement powers.

The Law Commission’s consultation is now underway. It has begun at a time when the existing confiscation regime is viewed by some as ineffective. At 31 March 2019, the total value owed on outstanding confiscation orders was £2,065,303,000.

The Commission has stated that a desire for change has been prompted by the perceived complexity of the legislation. Its consultation paper considers how the current statutory framework could be changed to:

• improve the process by which confiscation orders are made
• ensure the fairness of the confiscation regime
• optimise the enforcement of confiscation orders

The consultation paper suggests ways in which reforms could be introduced to:

• prevent assets from being dissipated before a confiscation order is made
• ensure that when confiscation orders are made they are a realistic reflection of what a defendant gained from crime
• improve the enforcement of confiscation orders.

Its proposals include:

• Introducing new, clearer processes in legislation, procedure rules and guidance about how courts should approach confiscation.
  
  Examples include:
  
  Setting out express statutory objectives of the confiscation regime of depriving a criminal of their proceeds of crime, deterring and disrupting crime and compensating victims.
  
  Removing “punishment” from the objectives of confiscation, so that punitive sentencing and restorative confiscation are clear and distinct parts of the criminal justice process.
  
  Clarifying that sentencing should take place before confiscation proceedings are resolved unless the court directs otherwise.
  
  Improving the process’ efficiency by establishing standard timetables for confiscation and introducing a six-month maximum period between sentencing and a confiscation order coming into effect.

• Giving the Crown Court the discretion to impose contingent orders when making the confiscation order. If a defendant then fails to pay the confiscation order, the contingent order would allow assets to be claimed in a timely way.
• Giving the court discretion to impose financial penalties and forfeiture orders before confiscation proceedings have been resolved, in order for compensation to be awarded earlier in the process than at present.
• Having defendants who are sent to prison for failing to pay their confiscation order released on licence (rather than unconditionally) when automatically released half way through their sentence, so they can be returned to prison for continued refusal to pay the order.
• Making defendants appearing before magistrates in enforcement hearings provide clearer and more detailed evidence of their financial position if they claim they cannot pay their order.
• Creating flexible ways of enforcing orders, such as a judge deciding to pause or reduce the accrual of interest as an incentive for a defendant to keep complying with the order.

Those wishing to submit responses as part of the consultation can do so online or by email or post. A series of consultation events is being held by the Commission until the end of November. The consultation will continue until 18 December 2020. When the consultation period ends, the Commission will examine the responses. It aims to publish its final report, which will include its recommendations to government, in spring 2021.