Partner Amjid Jabbar examines why confiscation orders are not working and calls for a new approach in The Times.
Amjid’s article was published in The Times, 1 September 2016, and can be read here.
Only 26 pence in £100 of every confiscation order made to recover the proceeds of a crime is recouped — with a massive £1.6 billion remaining unpaid. Nearly one third of that represents interest and penalties for non-payment.
The Home Affairs Committee of MPs published proposals in July aimed at tackling the problem and recouping more of criminals’ ill-gotten gains. But while some of the recommendations may on a basic level appear a good way to begin recouping these debt, some ignore the many complications that can arise during the confiscation process.
It is stated that to enforce repayment, “no criminal be allowed to leave prison without paying their confiscation order in full”, which is little more than a soundbite to achieve headlines. It is not practical, nor is it workable. The confiscation process, particularly in complex cases, can take months, sometimes years. Before the orders are issued, defendants can be released from custody. So is the report suggesting that people who have served their sentence, and should be released, continue to be held pending the results of this process?
The idea also falls short in its aim of attempting to recover money. To continue to detain someone who may no longer have access to those assets would serve only to drain the resources of our already overcrowded prison system, all to “prove a point” that crime doesn’t pay.
It is also worth noting that the confiscation regime was recently overhauled, increasing default penalties to a maximum of 14 years and removing the automatic right of release at the half way point for those given the highest default term.
Since its inception, the Proceeds of Crime Act has had many amendments, which have resulted in more and more powers for the state. The net effect is that draconian powers are already in place — which raises the question of why the debt owed by criminals rose by 30 per cent between January 2014 and March 2016.
One often underlooked aspect is the role of the prosecution agencies and the way that they set out their case, and the value of criminality. Many prosecutors are stuck in the “old way” of thinking, and do not make full and correct use of the powers available to them. The state has the capacity for much greater monitoring and revisiting of confiscation orders, but these are rarely used.
Prosecutors, aiming to have their work achieve press coverage, tend to aim for huge, and unrealistic, orders from the outset. These orders make it almost impossible for the full amount to ever be recovered, and serve only to boost the media presence of the trial. When the dust settles, the failure to retrieve a confiscation order is much less newsworthy than the size of the order, leaving the only coverage as a boost for the prosecution.
For the future, the courts and prosecution teams need to adopt a much more pragmatic approach to confiscation orders. Making realistic orders, while not as newsworthy, makes payment more plausible and, therefore, likely. Even if payment isn’t received, greater use of the extensive powers available will allow these orders to be revisited and hopefully resolved.