Law Commission recommendations for confiscation reform: Is there the will to find a way?

Following a lengthy period of research and consultation, the Law Commission (‘the Commission’) has published its final report and recommendations for the reform of Part 2 of the Proceeds of Crime Act 2002: the post-conviction confiscation regime (‘the report').

As acknowledged in the Commission’s report, the UK’s confiscation regime is considered to be inefficient, complex and ineffective. As at 31 March 2021, the estimated value of outstanding confiscation orders stood at £2.35 billion. 

The Commission’s recommendations seek to pave the way for a wholesale reform of this fundamental part of the criminal justice process. The report begins by underlining the importance of clearly drawing the boundaries and objectives of the regime, proposing the pithy aim of “depriving defendants of their benefit from criminal conduct, within the limits of their means.” 

The many other recommendations set out in the report are, without exception, unobjectionable and have been carefully considered. A key proposal is to accelerate confiscation proceedings and avoid ‘drift’ by establishing a strict timetable. The Commission suggests that “confiscation proceedings are started within a prescribed time and actively managed” and that “a timetable for confiscation proceedings must be raised as a matter before the court by the completion of the sentence hearing.”

This is a noble aim and one which would undoubtedly lessen the impact of long-drawn-out proceedings on victims as well as defendants and other stakeholders. As is the recommendation to formalise the negotiations between the prosecution and defence, which normally take place in the wings and make them centre stage, by way of ‘Early Resolution of Confiscation’ meetings and hearings. However, it is difficult to envisage these recommendations (and many of the others set out in the report) becoming reality without considerable investment in both the court system and struggling law enforcement agencies. 

The Commission’s report comes at a time of continuing economic uncertainty, with the spectre of austerity looming, and in the context of a criminal justice system in which delays to trials of more than 18 months are not unusual. The scale of the challenge was recently laid bare during evidence sessions before the House of Common Justice Select Committee. Director of Public Prosecutions Max Hill KC told the committee on 1 November that “a large number of things would need to align” in order to reduce the vast current backlog of Crown Court cases. His suggestions included increasing the number of judicial sitting days, which itself would require further resources for an expanded CPS. Giving evidence to the same committee on 8 November, following the publication of his most recent Annual Report, the Lord Chief Justice of England and Wales said constraints on judicial resources and the availability of lawyers were behind the current backlog. 

While it is not yet certain which of the Commission’s recommendations will find their way onto the statute books, it is clear that achieving a speedy, efficient confiscation process requires better funded agencies and more resources for the courts. Turning aspirations into reality at this time of competing interests will, more than ever, require strong political will, and significant financial commitment.

And although the Commission expects the reforms, if enacted, to result in an increased annual recovered debt of between £2.94 million and £14.7 million (a 2% to 10% uplift on current figures), this barely scratches the surface of the outstanding £2.35 billion – raising questions as to whether the scale of work required will be considered worthwhile.

The Law Commission expects a draft Bill to be tabled sometime in 2023. Although reforms are long overdue in this area, a confiscation regime is only as good as the agencies and individuals enforcing it, and the ability to enforce effectively does not come cheap. It can only be hoped that this point will be given due consideration in the Bill.

The Law Commission’s project page can be found here, and includes the full final report, a report summary and an impact assessment. Kingsley Napley are proud to have contributed to this consultation and for our views to feature in the Commission’s report. 

FURTHER INFORMATION

For further information on any issue raised in this blog, please contact Nicola Finnerty, Gemma Tombs or a member of our criminal litigation team.

ABOUT THE AUTHORS

Nicola Finnerty is a Partner in our Criminal Litigation team and a leading expert in white collar and business crime, proceeds of crime & asset forfeiture. Over the last 25 years she has been involved in many of the most high-profile, complex criminal and regulatory investigations and prosecutions, both in the UK and in matters which span multiple jurisdictions. Her expertise includes money laundering, fraud & bribery and corruption along with being regularly consulted by individuals and institutions in the regulated sector in respect of the Money Laundering Regulations 2017. Nicola represents high-net-worth individuals, multi-nation corporate clients, financial institutions and professional firms in investigations and proceedings brought by UK enforcement agencies.

Gemma Tombs is a Legal Director in the Criminal Litigation team and brings a wealth of experience to the role, having advised clients facing investigation and prosecution for many years. Gemma was previously a partner at Corker Binning and has been ranked as a leading individual in Crime by Chambers & Partner and been recommended by The Legal 500 in Fraud: White Collar Crime.