The Proceeds of Crime Act 1995, which amends pt VI of the Criminal Justice Act 1988, came into force on 1 November 1995, and introduced the 'draconian' features of drug trafficking confiscation legislation into the realm of non-drug trafficking cases.

Drug trafficking cases used to be distinguished by the fact that a confiscation order could be in respect of any amount of benefit derived from drug trafficking; no minimum amount being prescribed.

In contrast, when the offence was not a drug trafficking offence a confiscation order could only be made in a case where a defendant had benefited by at least £10,000.

This limitation had the effect that the offender could not be made the subject of a confiscation order if the benefit was less than £10,000, or even if more than this amount, the offender's assets were worth less than £10,000.

This limit has now been removed by Proceeds of Crime Act in respect of non-drug trafficking cases where the offence took place after 1 November 1995.

The implication of this is that non-drug trafficking offenders can be deprived of all their assets.

As a result of the removal of the £10,000 limit the confiscation hearing could become a feature of many more non-drug trafficking criminal cases.

It is believed that about 6500 confiscation orders were made in drug trafficking between 1987 and 1994 to the value of £77 million.

In contrast, between 1989 and 1994 in non-drug trafficking cases only 61 orders were made to the value of £5 million.

Within the drug trafficking regime a conviction for a drug trafficking offence operates as a trigger for the court to make an enquiry into the defendant's financial background.

the court has to assume that all property passing through the defendant's hands in the previous six years was derived through drug trafficking.

This 'assumption' could not previously be made in non-drug trafficking cases.

The Proceeds of Crime Act alters this position so that the assumption can now apply to other offenders, eg convicted fraudsters or burglars.

The assumption will be available if the defendant is convicted of two or more offences (one of which may be a previous conviction) from which a benefit was derived.

The onus is on the defendant to show on the balance of probabilities that the assumption is incorrect.

Failure to do so means that a confiscation order can be made covering the value of all the defendant's assets and expenditure during the period of six years before the institution of the current proceedings, and in respect of conduct of which the defendant has not been charged or convicted.

If a victim of the offence has not and does not intend to institute civil proceedings, the court must make an order equal to the amount of the defendant's benefit, subject to the defendant having available assets to satisfy the order.

In such circumstances the confiscation order now becomes mandatory.The term confiscation order is a mis nomer as the order is merely an order to pay a sum of money.

Although it does not at the time of the making of the order affect rights in property, nevertheless an assessment of property interests and rights has to be undertaken so that the court may properly make such an order.When conducting a confiscation hearing the court may order the defendant to provide information to assist the court in carrying out its functions, ie determining whether and to what extent the defendant has benefited from the crime.

The information so provided is not, however, statutorily protected by a privilege against self-incrimination.

This raises the spectre of defendants being prosecuted as a result of their own disclosure.

When such orders are made defendants may refuse to provide the relevant information unless the prosecution undertakes that the disclosure will not be used in the prosecution of an offence.

It is curious that as regards statements made by defendants in response to the prosecutors' statement which alleges the extent of the defendant's benefit, non-drug traffickers are now less protected than drug traffickers.

The Drug Trafficking Act 1994 contains a specific restriction that no acceptance under the section 'shall be admissible in evidence in any proceedings for an offence'.

The comparable section of the Proceeds of Crime Act contains no such protection.

It should be noted that the burden of proof to determine whether a defendant has benefited is not the traditional criminal standard of beyond reasonable doubt, but rather 'that applicable in civil proceedings'.The Proceeds of Crime Act extends investigative powers in non-drug trafficking cases in that it gives greater power to the police to obtain an order for the production of material.

It was noted in the October issue of Police Review that this power is wider than that contained in s.9 of PACE: the application may be ex parte, there is no need for the offence to be a serious arrestable offence, information may be obtained from government departments (for example, DSS and Inland Revenue records can be examined), and it need not be the only way to obtain the material.Michael Howard has indicated that he wished to send 'shock waves through the criminal community'.

The Proceeds of Crime Act, which provides for mandatory confiscation orders, enables far-reaching assumptions to be made which can relate to crimes of which the defendant has not been convicted, allows for information to be obtained from government departments, and contains powers which force defendants to make statements without protection, will contribute to the attainment of that objective, but the shock waves may go beyond the criminal community.