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On 9 November 2022, the Law Commission published its final report following its review of Part 2 of the Proceeds of Crime Act 2002 (“POCA”), also known as the post-conviction confiscation regime. The regime, designed for the recovery of proceeds of crime from offenders, has long been considered ineffective.
The main criticisms levelled at it are that not only is the process for obtaining a confiscation order 1 complex and time consuming, but offenders are also able to frustrate attempts at enforcement. To better understand the current state of affairs, as of 31 March 2021, the UK’s confiscation debt had grown to over £2 billion.
The Law Commission’s recently released report contains key recommendations on how to improve the existing statutory framework with the main objectives of giving courts more powers to enforce confiscation orders and seize offenders’ assets, of limiting unrealistic orders that can never be paid back, and of speeding up confiscation proceedings.
It is hoped that these proposals for reform will help recover an extra £8 million per year.
The Law Commission has set out in clear terms its recommendations. They consist of eight main objectives, as follows:
It is indisputable that the issues stemming from the current confiscation regime need to be urgently addressed. As it stands, the system is failing many victims and the Law Commission is now focused on redressing the situation through its recently-released set of proposals. Confiscation orders need to be realistic and enforceable in order to tackle the present-day issues faced by enforcers and the rising debt stemming from the current regime.
The recommendations proffered by the Law Commission aim specifically to give the courts more powers to enforce confiscation orders and seize offenders’ assets, to limit unrealistic orders that can never be paid back, and to speed up confiscation proceedings to allow victims to receive compensation more quickly. Further, permitting payment of legal expenses from restrained funds will have a huge impact on a practical level in sourcing income for the underfunded criminal law sector and enabling defendants to secure legal advice without reliance on Legal Aid. This also affords criminal defendants the same right to access justice as civil defendants subject to a freezing injunction.
Looking ahead, following the publication of its recommendations, the Law Commission is now working with the Office of Parliamentary Counsel to produce a draft bill to accompany these recommendations. This is due to be published in 2023.
1A confiscation order is a court order made personally against a defendant, compelling them to pay back some or all of the benefits from a crime they have committed, so that the proceeds are returned to the victim or the public.