The will to find a way: POCA and criminal confiscation

On 9 November 2022, following a lengthy period of research and consultation, the Law Commission (the Commission) published its final report and recommendations for the reform of Part 2 of the Proceeds of Crime Act 2002: the post-conviction confiscation regime (the report).

The issue

As acknowledged in the report, the UK’s confiscation regime is considered to be inefficient, complex and ineffective. As at 31 March 2021, the estimated value of outstanding confiscation orders stood at £2.35bn.

The Commission’s recommendations seek to pave the way for a long overdue reform of this fundamental part of the criminal justice process. The report begins by underlining the importance of clearly drawing the boundaries and objectives of the regime, proposing the new statutory objective of “depriving defendants of their benefit from criminal conduct, within the limits of their means.”

The recommendations

The many recommendations which follow in the report are, without exception, unobjectionable – and the Commission should be commended for its thorough review of the regime, seeking to:

• Speed-up confiscation proceedings by establishing strict timetables for hearings;
• Give courts the power to impose so-called contingent enforcement orders alongside confiscation orders;
• Strengthen the restraint order framework and codify the risk of dissipation test;
• Strengthen law enforcement agencies’ responses;
• Update the provisions that factor in a defendant’s criminal lifestyle when assessing their benefit from crime;
• Give greater consideration to the defendant’s ability to pay an order; and
• Create more flexible tools for judges when drawing up orders.

Analysis

The first proposal to accelerate confiscation proceedings and avoid ‘drift’ is a noble one. The Commission recommends a timetable for confiscation proceedings must be raised as a matter before the court by the completion of the sentence hearing. This is a significant improvement on the Commission’s initial proposal that confiscation proceedings should be started within six months of sentencing (other than in exceptional circumstances).

As any practitioner involved in confiscation proceedings will attest, it can be an uphill struggle to keep momentum and focus on this latter part of a criminal prosecution. This recommendation (along with the proposal that timetables for service of statements be set out in the Criminal Procedure Rules) will stop confiscation being sidelined and lessen the impact of long, drawn out, proceedings on victims, as well as defendants and other stakeholders.

Also to be applauded is the recommendation to formalise the negotiations between the prosecution and defence which normally take place in the wings and make them centre stage, by way of Early Resolution of Confiscation (EROC) meetings and hearings. In a similar vein to the relatively new process of pre-charge engagement, the EROC process should reduce costs and the scope for misunderstanding, make agreement between the parties more likely and avoid a contested confiscation hearing.