Law Commission’s Consultation on POCA 2002
- September 25, 2020
- Mike Massen
- No comments
The Law Commission’s consultation into potential reforms to the confiscation regime opened on 17 September 2020. What this means is that the government body which advises in relation to changes to the law are considering what changes could be made to improve the effectiveness of the Proceeds of Crime Act 2002 and associated legislation in recovering more money from defendants.
At this stage, it should be remembered that these are proposals only and not enforceable as law. This is a whistle-stop tour of some of the potential changes to the Act and Lauren Bowkett, Head of the POCA Department’s interpretation of how these could affect you in the future.
Key Proposals following the Law Commission’s Consultations on POCA 2002
The key proposals which could affect you include:
- Standard timetabling for POCA proceedings and introducing a six month maximum period between sentencing and the timetable being set.
At the moment, the Court allows up to two years to conclude confiscation proceedings from the date that the Defendant pleads guilty or is found guilty after trial. This can be extended if it is found that there are exceptional circumstances. The Law Commission is proposing that to speed up the delay in the process starting, the timetable should be fixed in six months from the sentence.
- Allowing the Court to make extra orders when the confiscation order is made, which are contingent on the actions of the Defendant i.e. if the Defendant doesn’t pay how the assets on the confiscation order could be recovered.
At this stage, it is unknown what sort of contingent orders could be made. However, it will allow the Court to think ahead if payment is not made and make orders to enforce the sale or realisation of assets in advance. At the moment such orders are not made in the Crown Court. When a confiscation order is made, the benefit and available figures are stated, the time to pay, and what sentence the Defendant would receive in default if he was not to pay. The new contingent orders would be much more tailored to the Defendant’s case.
- Giving the Court the power to impose financial penalties and forfeiture orders prior to the conclusion of the confiscation proceedings.
For example, if a Defendant has cash held in a bank account that has been restrained by the Prosecution, at the moment that cash will remain restrained until the outcome of the confiscation proceedings. The Defendant will then sign a consent to the transfer the funds to pay the confiscation or compensation order (if there are victims) at the end of the proceedings. Under the new proposals if there are victims the Court would have the power to make an order prior to the outcome of the confiscation proceedings to return cash to the victims.
- If Defendants are sent to prison for failing to pay their confiscation order, they will not be automatically released unconditionally halfway through their sentence. They will be released on licence and returned to prison if they still do not pay.
If a Defendant does not pay their confiscation order, they are sent to prison for the amount of time outlined in the confiscation order. They are then released unconditionally after half of that time. For instance, if the Defendant was sentenced to six months imprisonment in default, they would be released after three months. Under new proposals, the Defendant would still be released halfway through their sentence. However, if they do not take steps to then pay the confiscation order, they can then be returned to prison to serve the remainder of their sentence. At the moment, once released from prison, Defendants cannot be returned.
- If Defendants cannot pay their confiscation order, they will need to provide more detail concerning their financial circumstances and evidence in support of this
At the moment, once a Defendant has been to prison for non-payment of the confiscation order, they can be summonsed to court for what can be described as a financial penalty hearing. At the moment, the Defendant is asked to complete a form that sets out the Defendants income and outgoings. No evidence is required to support the information in the form. It is assumed that this recommendation is in relation to that process.
- Judges to be able to pause or reduce the accrual of the daily rate of interest at the Enforcement Court to incentivise the Defendant to pay the remainder of the confiscation order.
Once the Defendants time to pay expires, which could be three months from when the confiscation order is made or up to six months if an extension has been granted, a daily rate of interest begins to accrue. At the moment, there is no power to stop interest accruing and it accrues until the confiscation order is paid in full. It is proposed that Judges in the enforcement court have the power to pause or reduce the accrual of the daily rate of interest to assist and perhaps make the interest accruing more manageable.
These are only some of the proposals following the Law Commission’s consultations. Their consultation closes in December and after this time, it will become clear, which, if any of these proposals become law. POCA is a complex and constantly changing area of the law. If you face confiscation proceedings, make sure you instruct specialist lawyers as soon as possible.
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- Challenge confiscation orders
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- Defend enforcement proceedings
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