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Law Commission consults on reforms to confiscation regime

The Law Commission has launched a consultation on proposals to reform the confiscation regime which it says “could help recover an extra £8m per year from convicted criminals, by more accurately and efficiently determining a defendant’s criminal proceeds and more effectively enforcing confiscation orders”.

The Government’s law reform advisory body said the regime had been ineffective at recovering the benefits of crime from defendants. “The making of confiscation orders has been complex and time consuming, and once an order has been made, defendants have been able to frustrate attempts at enforcement.”

This had resulted in the UK’s 'confiscation debt' growing to more than £2bn (as of March 2019).

The Law Commission’s key proposals in the consultation paper include:

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  • "Introducing new, clear processes and frameworks set out in legislation, procedure rules and in guidance as to how to courts should approach confiscation. For example:

- Setting out express statutory objectives of the confiscation regime of: depriving a criminal of their proceeds of crime; deterring and disrupting crime; and compensating victims (where such compensation is to be paid from confiscated funds).

- Removing “punishment” from the objectives of confiscation, so that punitive sentencing and restorative confiscation are clear and distinct parts of the criminal justice process.

- Clarifying that sentencing should take place prior to confiscation proceedings being resolved unless the court otherwise directs.

- Making the process more efficient by establishing standard timetables for confiscation and introducing a six-month maximum period between sentencing a defendant and a confiscation order coming into effect.

  • Giving the Crown Court the discretion to impose contingent orders at the time of making the confiscation order. If a defendant then fails to pay the confiscation order, the contingent order would allow assets to be claimed in a timely way, permitting the efficient recovery of the proceeds of crime.
  • Giving the court discretion to impose financial penalties and forfeiture orders prior to confiscation proceedings being resolved. This will enable compensation to be awarded far earlier in the process than at present, benefitting victims.
  • For defendants who are sent to prison for failing to pay their confiscation order, we propose that when automatically released half way through their sentence, they should be released on licence – rather than unconditionally – so they could be returned to prison for continued refusal to pay their confiscation order.

- This would improve the enforcement of confiscation orders.

- In the current system, defendants are unconditionally released half way through their sentence. They are still liable to pay the confiscation order, however enforcement of the order tends to be difficult.

  • Defendants appearing before the magistrates’ court in enforcement hearings will be obligated to provide clearer and more detailed evidence of their financial position if they claim to be unable to pay their order.
  • Creating flexible tools for enforcement. For example, a judge could decide to pause or reduce the accrual of interest to incentivise continued compliance with the confiscation order."

The Law Commission’s consultation will run until 18 December 2020. It aims to publish its final recommendations to Government in 2021.

Professor Penney Lewis, Criminal Law Commissioner, said: “Currently, the confiscation regime is failing both victims and the public. The system isn’t doing its job and allows too many convicted criminals to keep their proceeds of crime."

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