What is Confiscation and Why Does it Matter?

What is the Test to Apply?

Following conviction for any offence where it is assumed that there has been a financial benefit from the offending, the Court must ask itself the following questions (as per the guidance of the House of Lords in R v May [2008] UKHL 28):

1.     Has the defendant benefitted from his crime?

2.     If so, what is the value of his benefit?

3.     What sum is recoverable from the defendant?

What is the Procedure?

The first step is that a Defendant is required to complete a Section 18 questionnaire. This requires them to provide various pieces of information including:

-         What bank accounts they have;

-         Whether they have any pensions;

-         Whether they own any property;

-         What pension entitlement they have.

Once the Defendant has completed this questionnaire, the Prosecution will provide a Section 16 statement. This will set out what the Prosecution say the Defendant’s benefit figure is and what their available amount is.

A benefit figure is the amount that the Prosecution suggest the Defendant has gained by virtue of their offending. This is either as a result of particular criminal conduct or in some circumstances it can relate to whether they have a ‘criminal lifestyle’ or have been convicted of a ‘lifestyle offence’; this may also be called general criminal conduct. This can be in the following circumstances:

1.     The Defendant has been convicted of a ‘lifestyle offence’;

2.     The number of offences or frequency of offences is such that a criminal lifestyle is established.

This means that the Prosecution are entitled to make various assumptions and any unexplained income in the preceding years will be treated as from criminal conduct and so susceptible to confiscation.  

After this, the Defence can serve a Section 17 statement which responds to the assertions made by the Prosecution.

There will then either be a contested hearing or an agreed order. This will have a time to pay and what is called a sentence in default.

What if I don’t pay?

The sentence in default can come into effect. This will be after enforcement proceedings have been pursued before the Magistrates Court. It can lead to a substantial additional period of custody.

It is important to be aware that a Defendant will only be required to pay the available amount. If the benefit figure is higher than this, it can only be revisited if there is a subsequent change in the assets held by the Defendant.