Tom Wainwright, Jacob Bindman and Meredoc McMinn of the Garden Court Chambers Financial Crime and Confiscation Team have put together a response to the Law Commission's Consultation on ‘Confiscation of the Proceeds of Crime After Conviction'.
There is no doubt that the confiscation procedure is in need of drastic reform. A regime that proudly describes itself as ‘draconian’ has no place in a modern justice system. As such, we welcome to Law Commission’s careful and thorough review of Part 2 of the Proceeds of Crime Act 2002. The changes proposed are in places radical and elsewhere more refined. In some instances we consider that the proposed reforms do not go far enough to alleviate the risk of injustice and we have set out our concerns.
We are grateful to the Law Commission for the steps taken as part of this consultation to seek greater involvement from the defence community, who have not always taken the opportunity to engage with and potentially shape reform, no doubt due to the demands of practice rather than satisfaction with the current system.
Although we practice solely on behalf of the defence, a fair system for the defendant is more likely to be an effective system and achieve better outcomes for prosecution and defence, victim and community. A defendant who is ordered to pay ten times what they actually have, and who has no prospect of avoiding a default sentence, has no incentive to further cooperate. A defendant who is ordered to pay only what they actually have is more likely to do so and bring proceedings to an end.
Too often, scepticism, suspicion and assumptions from the courts which may be justified in relation to the small number of individuals who sit at the top of an Organised Crime Group is brought to bear on low-level offenders caught up in the confiscation system. These are individuals who have not set up sophisticated systems to disguise or hide their assets, who cannot be said to have lived a ‘criminal lifestyle’ in the everyday meaning of those words and who have justifiably not considered for a moment that many years in the future they will need to account for every penny which passes through their hands.
Although outside the scope of this paper, we should also make it clear that any new system cannot hope to succeed without proper investment and remuneration to those involved. The majority of work carried out by advocates in relation to confiscation proceedings is effectively pro bono. Many counsel return cases after sentence rather than deal with the infinitely more complex and undeniably worse paid confiscation. Further engagement and preparation under these reforms will not take place without reasonable funding.
Among our key responses, we consider that:
- It should be made clear that punishment and deterrence form no part of the confiscation system;
- The system should focus on recovering the true benefit obtained and not funds which a defendant never really received;
- That relevant guidance and principles be provided in a similar form to the guidelines currently put together by the Sentencing Council;
- That if the prosecution consider that a defendant may have ‘hidden assets’ they be required to raise a prima facie case that is the position;
- That the ‘tainted gift’ regime be significantly restricted, particularly in relation to gifts made within the family and gift which are proved to be irrecoverable.
Overall, it is hoped that the outcome of this consultation will be a regime which incorporates a greater degree of fairness, common sense and proportion to the recovery of the proceeds of crime.