What makes confiscation so Draconian?

The confiscation legislation in the Proceeds of Crime Act 2002 and its predecessors has often been described as "Draconian".  But what features of the regime cause it to be so described?

I think there are half a dozen key features which combine to make the confiscation regime severe.

The intention of confiscation is to part the convicted criminal from the proceeds of his crime.  But the proceeds are not to be ascertained by an accountant's detailed examination of the "business" in which the criminal was engaged.  Indeed the Court of Appeal as long ago as 1989 in R v Ian Smith [1989] 1 WLR 765 said:

"It seems to us that the section is deliberately worded so as to avoid the necessity, which the appellant's construction of the section would involve, of having to carry out an accountancy exercise, which would be quite impossible in the circumstances of this case."

With that in mind the legislation has always been interpreted (in England and Wales at least) as equating the 'benefit' to be confiscated with the gross amounts received by the convicted defendant in connection with his criminal conduct.  This figure may be far in excess of the criminal's profit from the enterprise.

A second Draconian feature derives from the long-standing legal doctrine that where monies or other assets are received jointly by two or more persons then each of them receives the whole amount.  That means that, in confiscation, each of them obtains as 'benefit' the whole of the amount received jointly by them.  This inherently leads to double counting (and more than double counting where more than two people jointly receive monies or assets).

In cases where the convicted defendant is held to have a 'criminal lifestyle' (which include cases in which the defendant has been convicted of a single offence) the statutory assumptions (now found in s10 Proceeds of Crime Act 2002) apply.  These are a third Draconian feature of the legislation.  The effect of the statutory assumptions is that all receipts and expenditures since the 'relevant day' (normally 6 years prior to the day on which the defendant was charged with the offence(s) of which he is subsequently convicted) are deemed to represent benefit of unspecified criminal conduct, and all assets held by the defendant after the date of his conviction are deemed to represent further benefit.  These assumptions may be rebutted but the burden of proof, on the balance of probabilities, falls upon the defendant rather than the prosecution.  Where a defendant does not have adequate records over the previous 6 years or more he may find himself unable to produce the "clear and cogent evidence" which the courts require in order for the assumptions to be rebutted.

A fourth Draconian feature concerns the 'available amount' of the defendant.  A confiscation order is normally made for whichever is the lesser of (i) the defendant's 'benefit' and (ii) his 'available amount'.  But his 'available amount' is not the amount which he has available.  Rather it is his gross assets, less liabilities secured on those assets, plus the value of any 'tainted gifts'.  Further, the burden is placed upon the defendant to prove to the court, on the balance of probabilities, that his 'available amount' is less than the figure of 'benefit'.  This leads to difficulties (already discussed in this group) where the prosecution allege that there may exist 'hidden assets'.

In the event that a confiscation order is made based on the defendant's 'available amount' being less than his 'benefit' then it is open to the prosecutor to recommence proceedings against the defendant, in later life, to collect from him the balance of the 'benefit' which he was not ordered to pay first time around.  A fifth Draconian feature.

The final, sixth Draconian feature, is the default prison sentence which attaches to an unpaid confiscation order.  When making the confiscation order initially the court may order the amount to be paid immediately or allow the defendant up to 6 months to pay.  On further application the defendant may be allowed a further 6 months (making 12 months in all) but PoCA 2002 lays down that no extension beyond that 12 months is permissible.

Given that the order may well require the convicted defendant to dispose of all his assets it may be something of a tall order to satisfy the confiscation order on time.  In the event that payment is not made on time interest commences to run at 8% per annum on the unpaid balance.  More seriously the defendant may be committed to prison for (or have his sentence extended by) a 'default sentence'.  The length of the maximum default sentence is fixed by law on a scale relating to the amount of the confiscation order.  Where the order is for £1 million or more the maximum sentence in default is 10 years.  This is not a sentence to be served instead of paying the confiscation order, it is in addition to the order (since the amount due under the order remains payable in full).

In my view the confiscation regime richly deserves its Draconian epithet.

David

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davidwinch's picture

Cannabis houses

davidwinch | | Permalink

The Ancient One

There have been a number of prosecutions of Vietnamese groups growing cannabis in houses up and down the country.  So much so that the Court of Appeal used a selection of cases to set 'benchmarks' for sentencing - see R v Xu & Others [2007] EWCA Crim 3129.

The prosecution will normally seek confiscation orders against the higher level players in such cases.

That, of course, does not help you since monies confiscated go to the state rather than the victim.  You could have approached the prosecution prior to the verdicts and asked them to pursue compensation for you in the Crown Court but only for damage done in the course of offences of which the defendants were convicted.  There can be difficulties in getting compensation orders in such cases however.

David

cymraeg_draig's picture

David

cymraeg_draig | | Permalink

C_D   Are you saying that "it is totally wrong to subject anyone to investigation, expense, distress, and possible prosecution, on the basis of mere suspicion" and therefore that the police, HMRC, DWP etc should not carry out investigations based on suspicions reported to them?

Posted by davidwinch on Tue, 15/03/2011 - 22:54

 

 

That is exactly what I am saying. No one should have their privacy intruded upon, their rights interfered with, unless there is some actual evidence upon which the suspicion is based. Mere speculation is not and should never be enough.

I've seen the results of malicious accusations and botched "investigations" too many times to think they are ever acceptable. I've had a totally innocent client commit suicide because of purely malicious allegations and the susequent invasive investigation. I've seen totally innocent taxpayers totally cleared of any wrongdoing, yet, driven out of business by overzealous tax inspectors.   

We all know of blatant "fishing expeditions" by idle tax inspectors and the way that police "brand" and target individuals. What I found most horrific was when I discovered a police force which kept a list of "known offenders" - and included on that list people who had been accused and acquitted by the courts. Innocent people who had at some time been falsely accused were listed to be targetted whenever a similar crime was committed.

The fact is that police (and HMRC et al) do not "investgate".  They make their minds up first - then set out to prove their accusations, and in doing so they are habitually selective in teir approach, seizing upon anything that might be construed as supporting their accusations, and ignoring anything that tends to disprove their accusations.  

Innocent until PROVEN guilty - that phrase s becoming a sick joke in Britain.

 

 

davidwinch's picture

A scale of certainty

davidwinch | | Permalink

C_D

I would suggest there is a scale of uncertainty / certainty starting with speculation, then suspicion, then belief, then knowledge, then proof.

I think you are confusing speculation (which requires no evidence) with suspicion (which requires some evidence, but falling far short of proof).

The requirement is to report suspicion (or more than suspicion) - not speculation.

The police and HMRC could not operate properly if they were barred from investigating where there are suspicions.

David

cymraeg_draig's picture

.

cymraeg_draig | | Permalink

The police and HMRC could not operate properly if they were barred from investigating where there are suspicions.

 

Posted by davidwinch on Wed, 16/03/2011 - 10:30

 

There should be a requirement for evidence of a kind which can be placed before a court of law to be possessed before anyone is subjected to the appalling ordeal of being investigated.  As I said I have seen far too many malicious invstigations, and indeed numerous malicious prosecutions, and I have seen too many innocent lives destroyed, to believe that mere "suspicion" is enough.

I believe that if someone is to be subjected to the distress, expense, worry, and sometimes humiliation, of being investigated, they have a right to know  exactly why their lives are being turned upside down.

The other question of course is - do the police & HMRC operate properly?  The answer to that is an emphatic no. Kevels of incompetence are appalling within both organisations, standards have fallen, and ethical standards are almost non existant within both. 

A frightening fact is that police officers are almost routinely proven in court to have perjured themselves, yet they remain in the force.  It is now so bad that it is routine for defence counsel where a police officer is an important prosecution witness, to immediately investigate that officers past record both discipliniary and previous cases. Evidence that he has ben found to have lied to a court previously tenmds to undermine any evidence he now gives. The point being that at one time these officers would not have remained in the force - which shows how low values have sunk.

Suspicion

JackHarper | | Permalink

A quick trawl through a pdf of POCA yields 25 hits in a search of "reasonable grounds to suspect". I suspect (sorry!) therefore that this will be what is meant by suspicion in most places though I cannot vouch for it nowhere being unqualified.

This is of course the standard basis on which Mr Plod is allowed to do numerous things.

Plod is definitely getting better at weeding out those whose evidence the CPS might regard as of dubious utility. Of course such weeding is inevitably seized upon by Scrote and his brief to cast doubt on all previous evidence given by disgraced Plod. I know of a recent case of Mrs Plod fencing on E-bay goods which went missing on numerous occasions during raids by her hubby and his merry men. They are now toast but Scrote will be licking his lips at turning it to his advantage, preferably with compo.

While some of the constabulary may behave like Stasi agents the true successors of that cohort are the disciplinary Einsatzgruppen the PSU. I know of one case in which they were running an informant on the inside. A police driver who ran a red light following a major Scrote to ground and nicking same was prosecuted by CPS at behest of said Stasi based on grudge-bearing informant's testimony (informant now on light duties in location comparable to outer Hebrides). Case thrown out on technicality so driver not acquitted allowing PSU to pursue persecution via disciplinary procedures.With colleagues like this........

Jack Harper

 

davidwinch's picture

Suspicion

davidwinch | | Permalink

Jack

In relation to money laundering (sections 327 -340 PoCA 2002) the relevant test is suspicion.  See for example the use of the phrase "knows or suspects" in sections 328, 330, 331, 332 and (crucially in the definition of criminal property) 340.

In some of those sections there is also reference to "reasonable grounds to suspect" as an alternative, so suspicion stands as sufficient even without "reasonable grounds".

It is of course the case that police officers and HMRC officers (and indeed employees generally) may be subject to disciplinary action for breach of their employer's rules after having been acquitted of a criminal offence, because the criminal offence and the breach of rules are different things.

As for the Outer Hebrides do remember criminal law in Scotland is in many ways different from criminal law in England & Wales.

The police in the UK are made up of 43 different forces (typically corresponding more or less to counties) and an employee of one cannot be transferred against his will to a different police force any more than a chartered accountant employed by one firm could against his will be transferred to another.

David

Old Greying Accountant's picture

The difference is though ...

Old Greying Acc... | | Permalink

... to simple me, that the police are paid to investigate suspicion. That there is a channel for citizens  (professional or otherwise) to report suspicions to them (and importantly, with guaranteed anonymity) is important in my view.

For there to be a statutory obligation is wrong for many reasons, and even more wrong to be able to be prosecuted for "should have suspected" as equally as "did suspect". 

The competence and integrety of the police is a different matter entirely, as equally is the same thing in respect of accountants and lawyers of which too there are good and bad.

As an aside, a lot of the blame for the erosion cited by CD must go to the target culture forced upon the police, causing them to go for soft options, or to make the evidence match the "crime" in order to achieve those targets.

 

cymraeg_draig's picture

Dumbing down

cymraeg_draig | | Permalink

As an aside, a lot of the blame for the erosion cited by CD must go to the target culture forced upon the police, causing them to go for soft options, or to make the evidence match the "crime" in order to achieve those targets.

 

Posted by Old Greying Acc... on Wed, 16/03/2011 - 19:54

 

A lot of it also stems from the dumbing down of the entry requirements and the expectations, both physical and mental.

When I was a lad the average bobby was 6 feet tall and built like a brick outhouse. Nowdays they are either anorexic midgets, or rolly polly barrels of lard - seriously the only way they could catch a criminal is if the criminal cant run for laughing at them.

The other day I read about a police officer convicted of shoplifting - but not fired from the force. What ????????????

 

As for being prosecuted because you "should have suspected" - how stupid. What happens if you're in a rush, or you have a cold (or even man flu), or you're distracted because the cat's about to have kittens, or whatever. Maybe you just didnt read what was on the invoice, or perhaps you just didnt consider it "suspicious".  Yet, because some clown in a wig thinks that you "should" have been suspicious, you could find yourself banged up. How ridiculous.

 

 

weaversmiths's picture

Dumbing Down

weaversmiths | | Permalink

C_D says "When I was a lad the average bobby was 6 feet tall and built like a brick outhouse. Nowdays they are either anorexic midgets, or rolly polly barrels of lard - seriously the only way they could catch a criminal is if the criminal cant run for laughing at them."

They also looked grown up (:-).  Now they look barely out of school.  You know what 'th' say about when policemen start to look young! (:-).

 

TheAncientOne

 

cymraeg_draig's picture

Way off topic - but what the hell :)

cymraeg_draig | | Permalink

They also looked grown up (:-).  Now they look barely out of school.  You know what 'th' say about when policemen start to look young! (:-).

 TheAncientOne

 Posted by weaversmiths on Thu, 17/03/2011 - 17:28

 

Maybe I have a biased view, but the last REAL copper I saw was my maternal Grandad.  He was 6'8" tall, weighed 18 stone with not an ounce of fat, wore size 14 boots, and had a voice like rolling thunder.  He even had a truncheon made to match his size (which I still have) - nowdays you'd probably describe it as a baseball bat :) 

He always went out looking immaculate with highly polished boots and freshly pressed uniform, stood straight as a ramrod, and took no messing from anyone.

At harvest time I've seen him tossing bales of hay about one handed. 

Now that, in my opinion, is what a REAL police officer should be like.  

It was he who taught me respect for justice, and to stand up and fight without fear for what I believe to be right regardless of the cost.

My paternal grandfather was the total opposite, a 5'6", slightly build ex coal miner, who taught me my love of nature. An incredible man who had a way with animals the like of which I have never seen again.

I learnt a great deal from them both and although one died 40 years ago, and the other 25 years ago, there is not a day goes by that I dont remember them. Indeed, I cant look in the mirror without seeing my maternal grandfather as I take after him in looks and build.

Perhaps the modern way that kids have little contact with their grandparents, and therefore little exposure to their experience and knowledge of life, is one reason why there are so many youngsters who seem to lack respect nowdays.

 

 

davidwinch's picture

Beware

davidwinch | | Permalink

C_D

If you leave your home with your grandad's truncheon you risk being arrested for possession of an offensive weapon.

David

Old Greying Accountant's picture

David, that reminds me ...

Old Greying Acc... | | Permalink

... of the Constable Savage routine on "Not the nine o'clock news".

http://www.youtube.com/watch?v=BO8EpfyCG2Y

It was funny then, not so sure now ...

Old Greying Accountant's picture

David, again!

Old Greying Acc... | | Permalink

I have looked at your link.

It seems to me that subsection 3 gives ample discretion to an officer to only make an arrest if the person is likley to use the "weapon".

It would seem to me that it is over-zealosusly applied when you get the likes of a game-keeper charged and cautioned under that section because he forgot to take his skinning knife out of his coat before going to Tesco!

My perception is that it is used to make up quota's of arrests if they can't find anything else to "do" you for!!

davidwinch's picture

Unfortunately . . .

davidwinch | | Permalink

OGA

Subsection 3 was repealed by the Police and Criminal Evidence Act 1984.

As for the skinning knife that comes under different legislation dealing with items having a blade or point.

I was talking to my hairdresser recently who told me that she always carries a pair of scissors with her - even when shopping at the supermarket.  I advised her that this was a serious criminal offence - perhaps a foolhardy comment in the circumstances as she wielded her scissors about my person!

But there was a celebrated case of a man acquitted of carrying an offensive weapon which was a police truncheon forming part of his costume for attending a fancy dress party (he was held to have a reasonable excuse for his possession of the offensive weapon).

On the other hand a butter knife has been held to be a bladed article and so has a multi-purpose utility tool which includes a blade.  A person who said he habitually carried such a tool with him was held not to have shown a good reason to have it in his possession.

A small folding pen-knife is not regarded as an article prohibited by the section provided the blade is not more than 3 inches long.

David

How do I unsubscribe for updates to this thread?

chatman | | Permalink

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Becky Midgley's picture

@Chatman

Becky Midgley | | Permalink

In order to unsubscribe from this thread, you must visit the 'Content alerts' section of your profile, click into 'Groups' and find the group name. Next to it you'll see two drop down menus, select 'Never' from the intervals menu. If you get stuck, drop me a private message. Remember to scroll to the bottom and click 'Save' to affect the changes.

@Becky

chatman | | Permalink

Thanks Becky. Will have a go. 

cymraeg_draig's picture

Daft laws

cymraeg_draig | | Permalink

 

If you leave your home with your grandad's truncheon you risk being arrested for possession of an offensive weapon.

David

 

Posted by davidwinch on Thu, 17/03/2011 - 23:42

 

Isn't our legal system crazy. Carrying my grandfather's truncheon is illegal (potentially), having a potato peeler in my pocket is similarly potentially illegal, yet wearing full dress uniform for a regimental reunion including dress sword (which I can assure you is extremely sharp), is totally legal (there was a ruling on this some time ago). 

 

 

 

davidwinch's picture

A possibility

davidwinch | | Permalink

C_D

Are you by any chance a practising member of that well known religious sect the Welsh Jedi Dragons?  They (I'm sure) have a ceremonial religious costume which obliges them to carry an old police truncheon on Friday evenings.

Being a matter of religious observance the carrying of the truncheon is not contrary to the Act.

David

cymraeg_draig's picture

TAFIA

cymraeg_draig | | Permalink

Being a matter of religious observance the carrying of the truncheon is not contrary to the Act.

David

 

Posted by davidwinch on Fri, 18/03/2011 - 19:23

 

Now you've got me frantically googling looking for an old case.

I recall seeing it maybe 10-15 years ago. At the time there had been a lot in the press about Sikhs being allowed to wear a ceremonial knife as part of their religion.

Some guy decided he objected to this, and was arrested walking through town wearing a sword.  His defence was that he followed the viking religion and had to have his sword with him at all times as their belief was that they only went to Valhalla if they died with a sword in their hand.

Needless to say his defence wasnt succesful - which seems a bit unfair.

Incidently I'm not a member of the Welsh Jedi Dragons, but there is a sect half Welsh, half Italian, known as the Tafia who carry sawn-off leeks in violin cases - so be careful :)

 

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