Confiscation Proceedings
These are carried out post conviction and can have serious ramifications financially for a convicted defendant
When dealing with confiscation, the Court will look to establish two separate figures:
- The benefit figure - this is the amount that the Defendant has benefited. This can be made up of two separate figures:
- Particular criminal conduct - the benefit from the actual offending that has taken place e.g. the sale price of a stolen painting;
- General criminal conduct - if a Defendant has been convicted of a relevant offence the Court can determine that the Defendant has a criminal lifestyle. This means that assumptions are applied to any income in the period prior to conviction and it is assumed that all income and assets gained are as a result of general criminal conduct.
- The available amount - the assets that are available to a Defendant in order to pay the sums that they are alleged to have benefited. This is particularly important as failure to pay the 'available amount' can result in enforcement proceedings and an additional prison sentence.
However, before reaching this stage, there are strict rules which relate to confiscation orders which the Prosecution must adhere to.
Under Section 14 of the Proceeds of Crime Act 2002, the Court are required to either deal with confiscation at the time of sentence or to postpone confiscation for a specified period.
The postponement of confiscation is normally done through the setting of a timetable, this will normally include directions for the following:
- The service of a Section 18 Questionnaire - this is where a convicted Defendant will provide the Prosecution with a list of their assets which are available to them;
- The provision of a Section 16 statement which is where the Prosecution outline what they say the Defendant's benefit is and what their available assets are;
- The service of a Section 17 statement which is a response from the Defendant setting out areas of agreement and disagreement with the Prosecution.
If there is no postponement of confiscation or the making of an order, the Prosecution will need to apply under what is known as the slip-rule to bring the case back before the Court and try to re-open the case and seek confiscation. This will have to be done within 56 days.
Once a timetable has been set, there is still a requirement for a confiscation to be made during a 'permitted period'. This is the period which is two years from the date of conviction. This can only be extended in exceptional circumstances.
