PROCEEDS OF CRIME
A confiscation order is an order of the Crown Court which requires a convicted defendant to pay a sum of money to HMCTS immediately or, if he/she shows that he/she needs time to pay it, within a fixed period of time (initially limited to a maximum of 3 months, which is extendable to a total of 6 months).
An application for a confiscation order is considered as part of the sentencing process. The Crown Court will determine the defendant’s benefit from their offending - this is calculated by reference to the value of the property or financial advantage that a defendant has obtained from his criminal conduct. It can also extend to assets other than those relating to the offence for which the defendant is convicted subject to certain qualifying criteria being met.
The Crown Court will also determine the available amount - this is calculated by reference to the value of the defendant’s realisable assets less any payments that take priority over a confiscation order and any tainted gifts made by him/her.
The defendant will be ordered to pay the benefit from his/her criminal conduct unless he/she can show that some or all of it is no longer available. If he/she can do so, he/she will be required to pay the available amount.
The Crown Court will also fix a period of imprisonment to be served if the defendant fails to pay the confiscation order. The length of the sentence is fixed by reference to the amount of the confiscation order. This is called the ‘default sentence’.
If the defendant’s assets realise less than the amount of the confiscation order, he/she can apply to the Crown Court for a reduction of the order. He/she must show that his assets are not sufficient to pay the order. The court will take into account all of his/her assets at the time of the making of the application including any that he/she has obtained after the making of the order. However the court will not take into account any insufficiency that he/she causes to stop the order being paid.
If the value of the defendant’s available amount is less than the benefit from his/her offending and it is subsequently discovered that he/she has further realisable assets, a prosecutor can apply to the Crown Court for