The power of the court to confiscate the assets
The Proceeds of Crime Act gives the court the power to confiscate a person’s assets. The court has the power to confiscate certain assets as well as to sentence. The purpose of sentencing is to punish the offender, reduce the crime, to support reform and rehabilitation of the offender, to protect the public and to support the reparation by the offender. The court also has to follow some post-conviction procedures which have to be complied with. If the assets are criminal or obtained through committing and benefiting from a crime, the confiscation of the criminal assets applies. The Aim of the Proceeds of Crime Act is to deprive the criminals of the proceeds of the crime. Therefore the assets of the accused can be seized and placed under receivership following the confiscation and conviction of the defendant. The court gives the power to the Assets Recovery Agency to confiscate the assets before the trial in order to prevent the accused from transferring or interfering with the proceeds of the crime. The accused will therefore be deprived of the opportunity to dispose of the proceeds of crime. There is therefore a procedure which deals with confiscating a person’s assets following a conviction as well as civil procedure for recovery of criminal property.
The Proceeds of Crime Act
The Act creates the Assets Recovery Agency. The Act defines circumstances for confiscating the defendant’s assets following the conviction in the Crown Court for a criminal offence. The Act also specifies the procedure for the recovery of the criminal property in civil proceedings. The Act also gives the power to the director of the Assets Recovery Agency to exercise some Inland Revenue functions. It also regulates the law relating to money laundering and deals with the relationship between the confiscation and insolvency.
A confiscation order is an order made by the court to a convicted defendant to pay the amount of money that he or she received through committing a crime, in other words the money which constitutes the benefit from the proceeds of a crime. Any such benefit can be confiscated. The calculation of the amount which is to be confiscated is the amount by which the defendant has benefited from the criminal conduct unless the court finds otherwise and it is regarded that the defendant has benefited from a criminal conduct up to the time that the court makes its decision.
Confiscation process in the Crown Court
Confiscation orders can be dealt with only at the Crown Court. In order to commence an enquiry in the Crown Court the defendant must be convicted of an offence in the Crown Court and the defendant must be committed to the Crown Court for sentence. The process is mandatory if the prosecutor or the director of the Assets Recovery Agency asks the court to proceed or the court thinks it is appropriate to do so. The prosecution seeking the confiscation hearing must provide the court with the statement of information and the statement should contain several important information including whether the defendant has had a criminal lifestyle, whether he or she had a benefit from any of his or her criminal actions. The defendant will then respond to the statement whether he approves those particular allegations stated in the statement. Similar procedure and approach is taken under the Act. The main consideration is again whether the defendant had a criminal lifestyle and whether he or she had benefited from this crime. If the defendant did not have a criminal lifestyle the next consideration which is taken into account is the conviction of which the defendant is convicted. A defendant is considered to have a criminal lifestyle if he or she has committed any of the following offences, these include money laundering, drug, people or arms trafficking, trademark offences, counterfeiting, some offences under the Sexual Offences Act etc. It is considered to have a criminal lifestyle if the offence which the defendant committed forms part of the criminal activity or if there was any benefit from the criminal activity. If the defendant is assumed to have benefited from the crime, any money that he owns at the time of his conviction and any money that he transferred within six years of the date he was charged with the offence as well as anything that he spent during this period of these six years, are all assumed to be originated from the criminal conduct. The court must carefully consider all its assumptions in order to prevent the miscarriage of the justice or any unfairness. If the defendant does not have a criminal lifestyle, the recoverable amount is the sum equal to the defendant’s benefit from the criminal conduct.
A confiscation order can be made before the sentence or following the postponement of for a specified period. The period of postponement must be specified and it usually cannot exceed a period of two years if there are no exceptional circumstances. If there is a confiscation order made, the judge should also state what the default sentence is in case that the payment of that confiscation order is not made. Even if the sentence is served by the defendant, this does not absolve him or her from liability to make a payment as in accordance with the confiscation order. The order can still be enforced after the defendant is released from the prison if sufficient requirements are met e.g. reasonableness in time limitations. It is essential to note that only the Crown Court has the power to make a confiscation order.