Confiscation proceedings: a Draconian regime?
Proceeds of Crime Act (PoCA) 2002 legislation is increasingly rearing its head (Sunderland accountant facing jail term), but does the regime deserve its “Draconian” epithet?
This lively debate has been simmering away in the Money Laundering & Fraud discussion group, revolving around the question of how severely - in terms of financial penalties - we should treat convicted criminals.
David Winch asks whether we should hit them hard - even financially 'wipe them out' - or endeavour to respect their human rights by applying the hallowed principle of ‘innocent until proven guilty’ to restrict their punishment to those matters of which they have been proven to have been guilty?
Winch kicked off the debate by outlining the six key ‘Draconian’ features that make the confiscation regime severe:
- The confiscation figure may be far in excess of the criminal's profit from the enterprise
- Where monies or other assets are received jointly by two or more persons then each of them receives the whole amount - this inherently leads to double counting
- Where the convicted defendant is held to have a 'criminal lifestyle' the statutory assumptions apply - meaning all receipts and expenditures since the 'relevant day' 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
- The 'available amount' of the defendant – means gross assets, less liabilities secured on those assets, plus the value of any 'tainted gifts'
- 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
- The default prison sentence which attaches to an unpaid confiscation order - no extension beyond 12 months is permissible and could result in a maximum sentence of 10 years
The issue has clearly divided AccountingWEB members, with some calling the legislation “not British”, and another commenting that it’s “about time criminals have real punishment for their crimes. Society striking back in my view and long may it continue.”
Winch moves on to question whether we have the balance right between the human rights of individuals and the need to deal with crime in our society.
Click here to read the entire posting in the Money Laundering & Fraud discussion group.