POCA: “Am I bovvered?”

Tom Storey

The answer to this question has to be “You probably should be…” For reasons set out below, criminal practitioners are highly likely to have to deal with the various aspects of the Proceeds of Crime Act 2002 more frequently, and the need to be fully conversant with the workings of the Act will become increasingly important.

On 21st March 2014, the Public Accounts Committee published its report on confiscation orders imposed in criminal proceedings. This report came to a number of conclusions, which include the following:

1. At the early stages of criminal proceedings, there has been too low a priority on obtaining restraining orders in relation to those with significant assets. In the period 2012-2013, “only” 1,368 restraining orders were imposed: a reduction of 27% from 2010-2011.
2. Too few confiscation orders are being imposed at present. Again, the quoted figures were that “only” 6,392 orders were imposed in 2012-2013, as against 673,000 offenders who were convicted of some criminal offence (many of which involved some financial element). The view taken was that the seeking of confiscation orders is too often given insufficient importance by the prosecuting authorities.
3. Not enough is being done at present to enforce confiscation orders once they have been made; this is especially so in high-value cases. The enforcement of low-value orders has been much more successful than high-value ones. The quoted figures reveal that in relation to orders for under £1,000, the enforcement rate is nearly 90%; whereas for orders of over £1 million, the enforcement rate is just 18%.
4. The sanctions imposed on offenders who fail to pay confiscation orders imposed by the Courts do not work, as many of those who are subject to such orders, and particularly those who have been on the receiving end of high-value orders, are prepared to serve an additional term in custody rather than pay the sum due under their confiscation order. The figure of £490 million was quoted as being the amount outstanding from those who have either served, or who are currently serving, an additional custodial term for non-payment.

Much of this will not be news to those who regularly deal with confiscation orders and other aspects of the POCA legislation. However, what is clear is that the conclusions of the Committee are that more should be done to restrain offenders’ assets at an early stage, to obtain confiscation orders upon conviction, to enforce those confiscation orders, and to beef up the sanctions for non-payment of orders. It was said that there are already plans afoot to “strengthen” (i.e. presumably, increase) the prison sentences for non-payment of orders; it is not difficult to foresee that it will not be long before similar plans are afoot to deal with the other inadequacies arising from the current implementation of the POCA legislation.

A full copy of the report can be found at:

http://www.publications.parliament.uk/pa/cm201314/...