Confiscation Order

CPS guidance on confiscation proceedings explains that the Crown Court is required, absent special circumstances, to make a confiscation order in every case where the statutory criteria are met. The House of Lords in R v May explained the purpose of the legislation: it is intended to deprive defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit, within the limits of their available means. The court approaches the exercise by asking three questions: whether the defendant has benefited from relevant criminal conduct, what the value of that benefit is, and what sum is recoverable.

Benefit is defined by section 76(4) of the Proceeds of Crime Act 2002, under which a person benefits from conduct if he obtains property as a result of or in connection with the conduct. Where a defendant cannot pay the sum ordered, the guidance notes that it is assumed that payment will be forthcoming, from one source or another, such that the defendant avoids serving the term of imprisonment in default — but a term of imprisonment in default is the mechanism used to enforce payment where funds are not produced. The Crown Court is under a duty not to make a confiscation order that would be “disproportionate” (section 6(5) of POCA), a safeguard drawn from Article 1 of the First Protocol to the European Convention on Human Rights.