The Law Commission has been tasked by the Home Office to consider reforms to the confiscation regime “to ensure they’re effectively depriving convicted offenders of their ill-gotten gains”. Noting that the confiscation regime is a potentially valuable tool by which offenders can be deprived of any benefits they have gained through criminal conduct, the Commission acknowledged that the law in this area is unduly complex and can hamper the effective recovery of the proceeds of crime.
The Commission’s review will address Part 2 of the Proceeds of Crime Act 2002 (POCA), considering improvements to the existing law and what an optimal confiscation regime would look like. It will ask to what extent the current law achieves its objectives and whether it provides the most effective way of confiscating criminal assets.
The review will focus on the conviction-based confiscation regime. In particular, it will examine:
- the challenges in effectively preventing the dissipation of criminal assets;
- the irregular compensation of victims in confiscation proceedings;
- the frequent imposition of unrealistic confiscation orders; and
- the ineffective incentives and sanctions of the confiscation regime.
In launching the review, Law Commissioner Professor David Ormerod QC said: “Our aim is for a confiscation system that is efficient, optimised and fair to all.”
In supporting the Commissioner, Minister for Security and Economic Crime Ben Wallace confirmed that government welcomed the Commission’s important work and looked forward to seeing the final recommendations. He drew attention to the recently published Serious and Organised Crime Strategy and set out in no uncertain terms that: “This Government is committed to denying the most dangerous and determined criminals access to their money and assets”
Strengthening our ability to target dirty money and reduce economic crime
Announced on 1 November by the Home Secretary Rt Hon Sajid Javid MP, the Serious and Organised Crime Strategy opens with the stark statement that “Serious and organised crime affects more UK citizens, more often, than any other national security threat ….. it costs the UK at least £37 billion annually.”
One strand of the strategy is to tackle illicit finance and reduce economic crime. This will be a priority. The paper sets out the “critical importance of denying the highest harm networks the ability to hide, move or use their profits.” To combat this, the government will “identify and seize their assets and make it more difficult for them to move and hide their illicit funds”
As has been rehearsed before in relation to money laundering, law enforcement authorities have an eye to those providing professional services, termed “enablers”. “The complicit, negligent or unwitting professional enablers who are often key to moving illicit funds through the UK and global financial systems” will be targeted.
Asset recovery – the power to locate and seize money made by criminals - can disrupt criminal networks, prevent the funding of further illegal activity and compensate victims for their ordeals.
The government will publish an action plan on asset recovery, including support to the Law Commission’s work to identify reforms to improve the confiscation regime, which is due to complete by 2020.
While the government’s aims may be laudable, at the present time such aims seem to consist more of stern words than anything more concrete. It is for this reason that the Law Commission’s work is particularly important and welcome, albeit long overdue: the unwieldy and ineffective confiscation regime is in dire need of reform if effective asset recovery (and concomitant public trust and confidence in the process) is to be achieved.
For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.