Proceeds of Crime / Criminal Confiscation

The Proceeds of Crime Act 2002 is a far reaching and extremely detailed piece of legislation. Its aim is to ensure that those involved in criminal conduct do not benefit from their actions. It seeks to achieve that in two main ways: by enhancing the powers of the criminal courts to recover the proceeds of criminality from those convicted of certain criminal offences, and to give the state the power to recover illegally obtained assets even where no criminal prosecution has taken place.

The Act covers the whole UK, but it is subdivided into different parts for each of the individual jurisdictions. The provisions covering England and Wales are similar, but not identical, to those for Scotland. It is vital, therefore, to have strong and effective representation from solicitors who understand the nuances of the legislation.

Criminal cases

In criminal cases, the benefit of criminal conduct can be confiscated.

Normally the link between the crime and the benefit is obvious – if someone robs a bank, they have to pay back the money they stole.

However, the legislation recognises that sometimes the link can be more opaque. When someone is convicted of a ‘lifestyle’ offence (for example drug trafficking), the court is entitled to look at their finances over a six-year period, and identify any apparent gaps between legitimate income and accumulated assets. This is a complex process which normally involves evidence from forensic accountants, and requires a significant evidence ingathering exercise to be completed by the accused. The onus on the accused in such cases is to prove that transactions were not part of the criminal conduct for which they have been convicted.

It is important to note that proceeds of crime/criminal confiscation proceedings are considered to be an extension to sentencing. At the conclusion of such proceedings, a confiscation order is usually granted by the court confirming the total sum of the benefit of the accused’s criminal conduct, and the total sum which is available by the accused to repay.

Sums thereafter recovered under the confiscation order are paid to the court – they are usually then allocated to the Scottish Government’s consolidated fund to be reinvested into community projects and activities, or in some cases are repaid to the victims of the criminal conduct.

Once a confiscation order is granted, there are strict timeframes for payment. Failure to make payment within those timeframes can have further serious consequences, so it is important to seek early legal advice and representation in regard to any criminal confiscation process.

Notable case:

A notable case concerning criminal confiscation is the UK Supreme Court’s decision in R v. Waya [2012] UKSC 51. That was an appeal against a confiscation order made following a criminal conviction in the English courts. There was much discussion about how the benefit from the crime should be calculated, and hence how much should be confiscated. The trial judge, the Court of Appeal and the Supreme Court all came to different conclusions; the Supreme Court itself did not manage to reach a unanimous view. What was clear, however, was that the legislation needed to be interpreted in a way that respected the human rights of the accused, including the right not to have property arbitrarily removed. Any interference had to be proportionate. The decision had a major impact on the calculation of confiscation orders in criminal cases.

How we can help

With any case under the 2002 Act, it is vital to have strong and effective representation. Proceeds of crime/criminal confiscation proceedings can have profound implications, and it is essential to have assistance from a firm that understands and has experience of the complexities of the process.

Our Specialist Litigation Team has dealt with many of these cases, such as criminal confiscation cases where there is a challenge to expert evidence; civil recovery where there is a dispute over whether the property came from criminal conduct; applications to vary or exclude property; challenges to disclosure orders; and many more besides.

Contact our Special Litigation Team

For advice on your case, please contact our Specialist Litigation Team on 0141 429 8166 or by completing our online contact form.