Confiscation

In cases where all the crimes charged or indicted occurred on, or after, 24 March 2003, a new confiscation regime, under the Proceeds of Crime Act 2002, is now in force.

If a person is convicted only of such offences then the court must act as follows:

- Decide whether the defendant has a criminal lifestyle.

This is defined in section 75 of the Act.

There is a criminal lifestyle if the defendant is convicted of an offence set out in schedule 2 of the statute (including drug trafficking, money laundering, directing terrorism, people trafficking, arms trafficking, counterfeiting, intellectual property crime, crimes relating to pimps and brothels, and blackmail).

There is also such a lifestyle if the conduct is part of a course of criminal activity.

For these purposes, a crime is discounted if it does not involve an offence of at least 5,000.

Such a course will arise if the person has been convicted of three or more offences on this occasion or, in the six years before the date the present proceedings began, was convicted of offences on two separate occasions.

Finally, there will be a criminal lifestyle if the offences now convicted occurred over a period of at least six months and the benefit is a minimum of 5,000.

- If the court finds there is a criminal lifestyle, it must decide whether the defendant has benefited from his general criminal conduct; that is crime of any sort without the Crown having to prove specifically which offences.

- If the court cannot conclude that the defendant has a criminal lifestyle then it will continue to consider whether the defendant has benefited from the particular criminal conduct of which he has just been convicted, as under the pre-existing law.

The Crown now has the right to require a magistrates' court to commit a case in which it would otherwise have summary jurisdiction if the Crown seeks a confiscation order.

However, if such a demand is made, the court must first consider whether it would have sentenced within its own powers.

If it so declares, the Crown Court may not impose a heavier penalty (save for the confiscation order) when it comes to deal with the case.

(sections 70 and 71 of the Proceeds of Crime Act 2002).

The Crown now has a right of appeal if a confiscation order is not made or if the amount is not that sought by them.

The procedures are laid down by the Proceeds of Crime Act 2002 (Appeals under Part II) Order, 2003.

The funding for all this work is provided by the Criminal Defence Service as ancillary to the main criminal proceedings.

No further application for a representation order needs to be made.

However, the Act has also introduced a significant extension of the ancillary powers of the Crown to obtain restraint orders.

These may now be instituted even though no charge has yet been preferred, provided that only the defendant is subject to a criminal investigation and that there is reasonable cause to believe they have benefited from criminal conduct.

In such cases, public funding is available under the Community Legal Service but may be undertaken by firms with LSC criminal contracts only, as associated CLS work.

By Anthony Edwards, TV Edwards, London