We have identified some areas of law that our experience and discussion with stakeholders suggest may require reform. They could be potential projects for the Programme. We would like to hear your views about these, and whether you think they should form part of our work over the next few years.
Should the law governing confiscation orders be reformed?
The law on the confiscation of proceeds of criminal conduct has changed significantly and frequently over the last three decades. The principal source is now the Proceeds of Crime Act 2002 (PoCA), but that Act has been repeatedly amended, most recently by Chapter 1 of the Serious Crime Act 2015.
The law in this area is notorious for being difficult to apply and enforce. These difficulties have at least 2 principal causes:
- The complexity and unwieldy nature of the PoCA regime which must be considered by courts faced with an application for an order which can lead to protracted litigation around the making of orders. Figures published by the National Audit Office in December 2013 estimated the total annual cost of court hearings and appeals on confiscation orders to be £31.8 million.
- The inefficiency of enforcement processes and the lack of discretion available to enforcement agencies and the courts when it comes to the enforcement of orders once made. Figures published by the National Audit Office in December 2013 estimated the total annual cost of confiscation enforcement was estimated at £3.2 million.
The complexity of the law is legendary. Even after detailed consideration by the Supreme Court in R v Waya (Terry)  UKSC 51, the law remains unclear. The effect of this decision was to cast doubt on much of the case-law which had grown up around PoCA over the preceding decade, and the Supreme Court has heard five further appeals on the issue of confiscation since Waya.
A disappointingly small fraction of the total monies ordered to be paid under confiscation orders has been collected. In March 2016 the National Audit Office published figures that showed an outstanding debt on unpaid confiscation orders, as at September 2015, of £1.61 billion (an 11% increase on the year before). Only 17.5% is estimated to be realistically collectable.
Often defendants facing confiscation orders do not have the means to pay them. It can, however, be extremely difficult for the courts to rule that a defendant’s assets are inadequate to pay an order under the current provisions. Usually the courts have no option but to impose the obligatory default sentence, and thereafter the chances of successful collection decline drastically. Only 2% of orders were paid off in full in cases where the default sentence was imposed in 2012.
A confiscation regime should have a simple purpose, namely to strip wrongfully acquired assets from those convicted of crime, and should be capable of being applied and understood in the busy criminal courts by practitioners, judges and indeed self-represented defendants. The current law clearly fails in that respect, and also fails in practice in its purpose of stripping those convicted of acquisitive crime of their assets.
What do you think?
We welcome consultees’ views on whether reform of the law of confiscation would be a worthwhile project for the Law Commission to undertake, and if so, which aspects should be prioritised. Please use this form to send us your comments on this potential project, and email it to firstname.lastname@example.org.