Confiscation Proceedings | Commencement and Postponement
A confiscation order under the Proceeds of Crime Act 2002 (POCA) is a legal mechanism used to recover the financial benefits gained from criminal activities. It is typically issued following a criminal conviction of a defendant of one or more specified offences. A confiscation order aims to deprive the defendant of any unlawful earnings and deter crime by targeting the financial incentives behind illegal activities.
Upon request by the prosecutor, and if deemed as appropriate in accordance with Section 6 of the POCA, the Court is required to issue a Confiscation Order. This order requires the defendant repay the amount gained through their criminal lifestyle. The process involves assessing the total value of the benefit the defendant received from their crimes and determine the amount they are required to pay back.
To comply with procedural requirements, Confiscation Proceedings will typically be formally postponed until after the Sentencing Hearing has concluded.
Section 14 of POCA provides for a two-year period within which the Confiscation Proceedings must be concluded.
This two-year time frame has, until recently, been regarded as a rigid requirement. However, The Court of Appeal in R v Haden, Smith, Blair & Rohelsaar and Mann [2024] EWCA Crim 344 has clearly modified this limitation in exceptional circumstances.
Sukhi Randhawa of KANGS outlines the relevant legislation and the Court of Appeal decision.
The Relevant Legislation
POCA provides as follows.
Section 6. Making of an Order
The Crown must proceed under this section if the following two conditions are satisfied:
First condition:
- the defendant is convicted of an offence or offences in proceedings before the Crown Court
- he is committed to the Crown Court for sentence for a relevant offence(s)
- he is committed to the Crown Court for specified offences with a view to a Confiscation Order being considered.
Second Condition:
- the Prosecutor requests the court to proceed under this section or
- the court believes it appropriate to do so.
The court must proceed as follows:
- it must decide whether the defendant has a criminal lifestyle,
- if so, it must decide if he has benefited from his general criminal conduct,
- if it decides that he does not have a criminal lifestyle, whether he has benefited from this particular criminal conduct,
If considered that the defendant has benefited from criminal conduct it must:
- decide the recoverable amount and
- make a Confiscation Order for repayment of that amount.
Section 14 Postponement
The court may:
- proceed under section 6 before it sentences the defendant for the offence (or any of the offences) concerned, or
- postpone proceedings under Section 6 for a specified period.
A period of postponement may be extended but, including any further extension, must not end after the permitted period ends.
The permitted period is the period of two years starting with the date of conviction.
Section 31 (2) Appeal by Prosecutor
If the Crown Court decides not to make a Confiscation Order the Prosecutor may appeal to the Court of Appeal against the decision.
Section 32 (2) Court’s powers on appeal
On appeal under section 31(2) the Court of Appeal may confirm the decision, or, if it believes the decision to be wrong it may:
- itself proceed under section 6
- direct the Crown Court to proceed under section 6.
The Case in Focus
Judges in separate unrelated cases, each presenting its own discrete issues, had refused to make Confiscation Orders, because of failure to complete the proceedings within the two-year period provided by section 14 outlined above. The Court of Appeal considered all the cases to enable it to make a decision on this specific issue.
Having considered previous Case Law, including Soneji (2005) and Guraj (2016), and the construction of Sections 6 & 14 of POCA, the Court of Appeal confirmed that if confiscation proceedings have not concluded before sentence, they may be started and postponed and concluded afterwards.
Within an extensive Judgment, the Court found, amongst other things, that:
- the permitted circumstances for an extension of the period may be extended where there exist exceptional circumstances,
- a broad view should be adopted as to matters constituting exceptional circumstances.
During the course of the Hearing, the following remarks were made:
- ‘the permitted period in Section 14 is a procedural device of a highly unusual kind. It is not a limitation provision.
- the purpose of the permitted period is not to protect the interests of the offender… the absence of an application cannot deprive the court of jurisdiction to act.
- finality for the offender is not a dominant feature of the confiscation regime.
- bearing in mind the context, I would not adopt a very strict approach to the meaning of exceptional circumstances.’
How Can We Help?
It seems clear that any prospect of successfully opposing the imposition of a Confiscation Order due to its not being completed within the two-year period has significantly decreased. The period has been declared to be simply a procedural device and not a limitation period.
However, POCA is extremely detailed and complicated, and issues constantly arise providing grounds for opposition and objection. Should you become subject to POCA proceedings of any nature, it is essential that you immediately seek legal advice and guidance.
KANGS is widely respected across the country for its depth of experience in all aspects of POCA. Over the past twenty years, we have represented clients in numerous cases, including some of the most high-profile POCA cases.
If you need legal advice or guidance, please feel free to contact our Team who will be delighted help using the contact details below:
Tel: 0333 370 4333
Email: info@kangssolicitors.co.uk
We provide initial no obligation discussion at our three offices in London, Birmingham, and Manchester. Alternatively, discussions can be held through live conferencing or telephone.
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