Ancillary Orders Consultation

Closes 4 Dec 2024

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Confiscation order

Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.
Relevant legisaltion

Part 2 of the Proceeds of Crime Act 2002
Availability
  1. Confiscation orders under the Proceeds of Crime Act 2002 may only be made by the Crown Court. The Crown Court must proceed with a view to making a confiscation order if it is asked to do so by the prosecutor or if the Crown Court believes it is appropriate for it to do so.
  2. Where, following conviction in a magistrates’ court, the prosecutor applies for the offender to be committed to the Crown Court with a view to a confiscation order being considered, the magistrates’ court must commit the offender to the Crown Court to be sentenced there (section 70 of the Proceeds of Crime Act 2002).
  3. Where, but for the prosecutor’s application under s.70, the magistrates’ court would have committed the offender for sentence to the Crown Court anyway it must say so. Otherwise the powers of sentence of the Crown Court will be limited to those of the magistrates’ court.
  4. Confiscation must be dealt with before, and taken into account when assessing, any other fine or financial order (except compensation). If the court makes both a confiscation order and an order for compensation and the court believes the offender will not have sufficient means to satisfy both orders in full, the court must direct that the compensation be paid out of sums recovered under the confiscation order. (See Proceeds of Crime Act 2002 sections 6 and 13)
Considerations
  1. Although often the parties agree some or all of the figures in such cases, ultimately it is for the Judge to make a proportionate order following his/her assessment of the facts.
  2. Where an order is made following an agreement by the parties this should be recorded in the order and it is prudent to ensure that the offender signs the schedule of available or realisable assets. Where an order is made after a contested hearing, it will follow the court’s findings of fact.
Payment

The full amount ordered to be paid under a confiscation order must be paid on the day on which the order is made unless the court is satisfied that the offender is unable to pay the full amount on that day in which case the court may make an order requiring whatever cannot be paid on that day to be paid in a specified period, or specified periods each of which relates to a specified amount. Any specified period must not exceed three months from the date of the order. If within any specified period D applies to the court for that period to be extended the court may, on being satisfied that D has made all reasonable efforts to comply, make an order extending the period for up to six months from the date of the order.

Sentences in default

Amount

Period     

£10,000 or less

6 months

More than £10,000 but no more than £500,000

5 years

More than £500,000 but no more than £1,000,000

7 years

More than £1,000,000

14 years   

 

Sentencing guidelines that will include a drop down of this guidance:

  • Corporate offenders: fraud, bribery and money laundering
  • Firearms – Transfer and manufacture
  • Fraud
  • Fraudulent evasion of a prohibition by bringing into or taking out of the UK a controlled drug
  • Going equipped for theft or burglary
  • Handling stolen goods
  • Importing or exporting a psychoactive substance
  • Individuals: Breach of duty of employer towards employees and non-employees/ Breach of duty of self-employed to others/ Breach of duty of employees at work/ Breach of Health and Safety regulations/ Secondary liability
  • Individuals: Breach of food safety and food hygiene regulations
  • Individuals: Sale of knives etc by retailers to persons under 18
  • Individuals: Trade mark, unauthorised use of etc
  • Individuals: Unauthorised or harmful deposit, treatment or disposal etc of waste/ Illegal discharges to air, land and water
  • Making Off Without Payment
  • Money laundering
  • Organisations: Breach of duty of employer towards employees and non-employees/ Breach of duty of self-employed to others/ Breach of Health and Safety regulations
  • Organisations: Breach of food safety and food hygiene regulations
  • Organisations: Sale of knives etc by retailers to persons under 18
  • Organisations: Trade mark, unauthorised use of etc.
  • Organisations: Unauthorised or harmful deposit, treatment or disposal etc of waste/ Illegal discharges to air, land and water
  • Permitting premises to be used
  • Possession of articles for use in frauds/ Making or supplying articles for use in frauds
  • Production of a controlled drug/ Cultivation of cannabis plant
  • Revenue fraud
  • Slavery, servitude and forced or compulsory labour/ Human trafficking
  • Supplying or offering to supply a controlled drug/ Possession of a controlled drug with intent to supply it to another
  • Supplying or offering to supply a psychoactive substance/ Possession of psychoactive substance with intent to supply
  • Theft – general
  • Theft from a shop or stall
11. Do you have any comments on the content of the confiscation order guidance, or on the list of sentencing guidelines which will include this guidance?