Law Commission review of POCA confiscation law

The Law Commission (the independent law reform body in England and Wales) has recently published a consultation paper on post-conviction confiscation under the Proceeds of Crime Act 2002 (POCA). We are now conducting a public consultation to learn about different views on the law and our proposals. To help us reform the law in this area, we’d like to hear what you think about our proposals.

The confiscation regime under POCA

After a defendant has been convicted, a “confiscation order” can be made as part of the sentencing process. A confiscation order is made personally against a defendant to pay a sum of money equivalent to some or all of their benefit from crime, depending on the assets available to the defendant. They are not obliged to realise any particular asset to satisfy the order, as long as the sum of money is paid. The main purpose of the confiscation regime is to deprive the defendant of what they gained from crime – in other words, to ensure that “crime doesn’t pay”.

We know that confiscation orders can be unfair. When the benefit amount is not calculated accurately, a defendant is left with an order which does not reflect what they gained from crime. This can have serious impacts. If a defendant does not pay, they may have to serve a default term of imprisonment. Currently, a confiscation order has no end point and accrues a high rate of interest. This leaves some defendants paying off their order slowly and for a long time, using legitimate earnings. This can hamper their rehabilitation. Additionally, as Dr Craig Fletcher highlighted in his guest post on Russell Webster in 2017, and subsequently in his PhD thesis, the confiscation regime may perversely disincentivise rehabilitation, coursing individuals back into offending to make the money they need to pay off a confiscation order.

The outstanding debt from unpaid confiscation orders is calculated at £2.2bn, of which Her Majesty’s Courts and Tribunals Service (HMCTS) estimates that £165m is collectable (HMCTS Trust Statement, March 2020, p 13). This legacy of unrecoverable debt can distort the landscape of what reform is needed to improve the confiscation regime under POCA. The majority of confiscation orders are made for modest amounts, up to £10,000, and many for much less. Our provisional proposals seek to improve the balance in the confiscation regime. We hope this will ensure that those who have “made their millions” from crime can be effectively held to account, while those who have not are treated fairly in paying back what they owe.

Proposed reforms

Our consultation paper considers how the existing law could be improved with three objectives in mind:

1. to improve the process by which confiscation orders are made;
2. to ensure the fairness of the confiscation regime; and
3. to optimise the enforcement of confiscation orders.

We have suggested reforms to many parts of the confiscation process, and the report follows the timeline of a confiscation order from timetabling at the beginning, to enforcement at the end.

Firstly, we are seeking to ensure that a defendant understands what they are signing up to, if they agree a confiscation order. Our proposal to promote the early resolution of confiscation proceedings will engage the defendant in the confiscation process, bring certainty to all parties sooner, and save time and resources by avoiding contested hearings.

Secondly, we have proposed reforms to ensure that when confiscation orders are made, they realistically reflect what a defendant gained from crime. This includes proposals to change the test on how benefit is calculated and to deduct the value of seized property from the recoverable amount. In addition, we have proposed changes to introduce some judicial discretion to the application of the “criminal lifestyle” assumptions.

Finally, regarding the enforcement of confiscation orders, we are seeking views on whether confiscation orders ought to be time-limited. We are also proposing the possibility to hold the enforcement of orders (“place them into abeyance”) if there are no longer any useful means of enforcing them, and to be able to pause the accrual of interest where efforts are being made to pay back the order.

These are only a few of our many proposals. To read about all of our proposals and to access the consultation questions please visit our website. The full and summary versions of our consultation paper are available to read and download.

Please give us your views

We want to know what you think of our proposals. Do you think they would help to make POCA confiscation fairer? Do you think there is anything else we could propose to improve the POCA confiscation process?

You can answer any of the questions in our paper, or from the summary. There are details below on how to submit your responses.

After we have collected public consultation responses, we will review them and make recommendations to the Government for reform of POCA. We welcome your views and experiences to help us improve the law in this area.

How to get in touch

Online: You can answer any of our consultation questions using our online survey. For the full survey, please click here. For the summary survey, please click here.

By email: You can email us at confiscation1@lawcommission.gov.uk

By post: You can write to us at the following address:

Confiscation Team

Law Commission

1st Floor, Tower, Post Point 1.52

52 Queen Anne’s Gate

London SW1H 9AG

The consultation period closes on 18 December 2020.