Confiscation enforcement
Enforcement of confiscation orders is vested in the Magistrates’ Court by s.35 of PoCA 2002.
For enforcement purposes, a confiscation order is treated as a fine. The relevant provisions of the Magistrates’ Court Act 1980 apply, including s.82(4) which provides that the Magistrates’ Court may not issue a warrant of commitment (i.e. activate the default sentence) unless (1) the offender appears to the court to have sufficient means to pay the outstanding sum forthwith or (2) the court is satisfied that the default is due to wilful refusal or culpable neglect and the court considers other enforcement methods to be inappropriate or unsuccessful.
A sentence in default of payment will be set at the time the confiscation order is made, in line with the bands at s.35(2A) PoCA 2002:
- £10,000 of less: up to 6 months
- More than £10,000 but no more than £500,000: up to 5 years
- More than £500,000 but no more than £1 million: up to 7 years
- More than £1 million: up to 14 years
Service of a default sentence of imprisonment does not expunge the underlying fine. A defendant will be invited to attend enforcement hearings in the Magistrates’ Court in relation to the unpaid portion of a confiscation order even after they have served a default sentence.
Third parties
It is often a difficult tactical decision for litigators to decide whether to assert third party interests during a confiscation application or await enforcement. If a third-party interest has not been taken into account [properly] during a confiscation application then it can be asserted at the enforcement stage.
Part-payment
If a Defendant has paid part of their Confiscation Order then the Magistrates’ Court will recalculate the default sentence on a pro-rata basis. For example, if a Crown Court makes a confiscation order for the sum of £250,000, attaching a default sentence of 2 years and the defendant pays £125,000 before the default sentence is activated, they will be entitled to a 50% reduction to the default sentence to reflect the part payment.
S.23 PoCA 2002 – Inadequacy of available amount: variation of order
Similarly, if a defendant successfully pursues an application under s.23 PoCA 2002 after their default sentence has been activated, the Magistrates’ Court will be required to recalculate the default sentence on a pro-rata basis. For example, if a Crown Court makes a confiscation order for the sum of £250,000, attaching a default sentence of 2 years and the defendant successfully pursues an application under s.23 PoCA 2002 after the default sentence is activated, such that the confiscation order is reduced to £125,000, they will be entitled to a 50% reduction to the default sentence to reflect their successful application.
Consecutive or concurrent
A default sentence activated by the Magistrates’ Court under s.35 PoCA 2002 will run consecutive to any sentence of imprisonment imposed for the underlying offence.
In practice
When a confiscation order is made, the Crown Court will set a time to pay (which cannot be more than three months in the first instance) and a default sentence (in line with the bands set out above). If all or some of the confiscation order remains unpaid when the time to pay expires, the defendant will receive a letter from the prosecuting authority including notification of a hearing date in the Magistrates’ Court. At that hearing, the defendant risks activation of their default sentence, unless they can persuade the court that the criteria in s.84(2) of the Magistrates’ Court Act 1980 does not apply.
Defending Allegations of Bribery & Corruption
The key to defending confiscation enforcement proceedings is early and ongoing expert intervention. In practical terms, this invariably involves deploying a multi-disciplinary team of litigators and consultants including investigators, specialist barristers, forensic accountants and industry experts. A proactive approach is key.
How can we help?
We can deploy a multi-disciplinary team of expert criminal and civil lawyers to assist in recovering and realising assets, asserting and negotiating third party interests and advocating to preserve the liberty of defendants.
We benefit from a wealth of in-house expertise in several disciplines including criminal defence, commercial disputes, compliance and regulatory. We also enjoy enduring relationships with leading consultants including compliance experts, investigators, specialist barristers, forensic accountants and industry experts.
Free Initial Discussion
If you have received a listing for a confiscation enforcement hearing in the Magistrates’ Court or are an interested third party who wishes to assert an interest at the enforcement stage then it is critical that you contact us as soon as possible.
Contact our lawyers by calling us on 0203 987 0222 or complete our enquiry form and one of our team will call you back.
