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Confiscation Orders - do they ever go away?
Under the Blair Government the state became entitled not only to prosecute criminals but also to assess the amount of money they made from an illicit lifestyle. Thus a drug dealer may receive not only a prison sentence but may also find himself the subject of Confiscation Order proceedings. Confiscation Order proceedings are nowadays brought under the Proceeds of Crime Act 2002. Proceedings can be brought by the CPS, HM Revenue and Customs, Financial Service Authority, Serious Fraud Office or Business Innovation Skills.
Confiscation Order proceedings are not restricted to ‘high fliers’ often someone convicted of Housing Benefit Fraud may have to repay substantial sums of money.
The Court will assess the value of a lifestyle crime and assume a Benefit figure. In drug trafficking cases this is the total benefit from all drug trafficking carried on by the Defendant or an accomplice at any time anywhere in the world and not just for the offence of which the Defendant is convicted. In assessing the benefit figure the Court will assume that all property and all income and expenditure for 6 years before the date criminal proceedings were commenced was received by the Defendant as the proceeds of drug trafficking. The Crown does not have to produce evidence and it is up to the Defendant to show any assumptions are incorrect.
Once the Court has assessed the benefit figure it must then consider how much property and money the Defendant owns. This is the realisable figure. The Court will then make a Confiscation Order for the amount of the realisable assets. While Confiscation proceedings are ongoing a Defendant’s assets are usually ‘frozen’ and subject to a Restraint Order.
Once the Court has assessed a realisable assets figure it will order payment and in default a prison sentence. Any non-payment inevitably results in a prison sentence over and beyond any sentence served for the original offence. Moreover, even after that Prison sentence has been served the realisable asset figure is still payable.
Furthermore often the realisable asset figure is less than the benefit figure. Even though the realisable asset figure may be paid the Crown can require a Defendant to pay the full benefit figure if his assets increase. For instance he could inherit or obtain a legitimate job.
What then is the point of reforming if as a result of hard work a Defendant’s property and money could be the subject of future Confiscation proceedings? Indeed in theory the Crown can wait forevermore for a Defendant to acquire further money and assets.
Of course money and assets are rarely the preserve of the Defendant. If he has a family almost certainly they will be wholly dependant upon the Defendant’s money and assets. Thus years later and after the Defendant has worked hard, built up a business and owns his own house in which his family live, along comes the state and suddenly takes away the fruits of legitimate labour and the family house is repossessed.
Confiscation Order proceedings are complicated and expert advice is needed. It is not only the criminal whose future is uncertain but also his family and dependants. Please call 0800 015 2568 or 01392 209209 for further advice.
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