Law Commission proposes overhaul of "inefficient" confiscation order regime

November 10, 2022

The Law Commission has put forward a series of reforms to the “inefficient, complex and ineffective” post-conviction confiscation regime contained in Part 2 of the Proceeds of Crime Act 2002.

In a report the Government’s law reform advisory body said the aim of the reforms aim was to give courts more powers to enforce confiscation orders and seize offenders’ assets, “limiting unrealistic orders that can never be paid back, and speeding up confiscation proceedings – allowing victims to receive compensation more quickly”.

The recommendations from the Law Commission to make the confiscation regime “faster, fairer and more effective” are:

Accelerate confiscation proceedings by establishing strict timetables for hearings, which take effect immediately after the defendant has been sentenced for their crime.
Give courts the power to impose “contingent enforcement orders” at the time that a confiscation order is made, meaning that if a defendant does not pay back the proceeds of a crime within a set time, assets – including property or funds in a bank account – could instead be taken to recover the proceeds of crime.
Strengthen “restraint orders”, which can be imposed by a court to stop a defendant from protecting funds or assets that might later be involved in confiscation proceedings. Place the “risk of dissipation” test – the test currently used by courts to judge whether to use this order – on a statutory footing, and clarify what could trigger the use of these orders.
Strengthen law enforcement agencies’ responses, through better police training and a national asset management strategy.
Update the provisions that factor in a defendant’s “criminal lifestyle”, when assessing their benefit from crime. Confiscation from defendants deemed to have a criminal lifestyle will also include gains from their wider criminal conduct. The Law Commission recommends that a defendant would have to commit fewer offences to be deemed to have a criminal lifestyle.
Give greater consideration to the defendant’s ability to pay, so that enforcement can be more effective. Defendants will be obligated to provide clearer and more detailed evidence of their financial position if they claim to be unable to pay their order.
Create more flexible tools to ensure better enforcement. “Give judges the power to adjust the funds that must be paid back by a defendant, depending on their personal circumstances. This would avoid situations where there is no realistic prospect of recovering the full amount of the confiscation order.”
Set out a clear statutory objective to govern the new confiscation regime – namely, to deprive defendants of their benefit from criminal conduct. “This would provide clarity on the purpose of the regime and move away from any prior emphasis on ‘punishment’.”

Commenting on the proposed reforms, Professor Penney Lewis, the Law Commissioner for Criminal Law, said: “The current system for recovering the proceeds of crime is ineffective and letting down victims and the public.

“Our reforms would make critical improvements to the current confiscation regime, allowing for millions more in funds to be successfully recovered from those who make illicit gains.

“By boosting enforcement powers, imposing more realistic and fairer orders, and speeding up proceedings, we can ensure greater public confidence in the system, and send a strong message that crime doesn’t pay.”

The Law Commission is now working with the Office of Parliamentary Counsel to produce a draft bill to accompany its recommendations which it aims to publish in 2023.

Lottie Winson