Confiscation – The Hidden Sentence
If you were able to listen in to a conference between client and solicitor, you might hear an exchange a little like this one:
‘What am I looking at?’
‘Around 12-15 months, suspended if you are very lucky.’
‘Oh, I can live with that!’
‘But there is something else?’
‘You are going to lose your money, your house and your car.’
What is confiscation?
At its most simple it is the process by which those convicted of a crime are deprived of their benefit from that crime.
So, for example, Jill steals £10,000 from her employer and spends it on a luxury holiday.
Her proceeds from that crime (referred to as the ‘benefit’) are £10,000, so she can expect a confiscation order to be made in that sum.
That sounds fair!
Well, it does on the face of it, but it is a little more complicated than that. The £10,000 from the confiscation order will not go to the employer; it will go to the state.
But the court may also make a compensation order in the sum of £10,000 to repay the employer for their loss.
So, Jill will have to pay £20,000?
It can get a whole lot worse!
For example, Paul steals a Porsche worth £130,000 but a few hours later he is stopped by the police, the car is recovered, and it is returned to its owner.
The ‘benefit’ here is £130,000 (the value of the car), even though the car has been returned.
Yes, it is. The examples above are all from real cases, and while the result outlined above does not always follow, the starting point is that confiscation is ‘draconian and intended to be draconian’.
Certain convictions trigger what are known as ‘lifestyle provisions’ which means that your finances going back many years will be subject to investigation. Unless you can establish that the income was lawfully obtained, the monies will be at risk of being added to the ‘benefit’ figure.
I haven’t got any money, so I don’t care!
Sure, but the benefit figure will still be determined, and if for example, you come into some money at a later date (for example an inheritance or pension), the prosecution can seek to take that money from you. Any property of value can be seized in order to satisfy a confiscation order, and if the court believes that you can pay the order, and you fail to do so, you can be sent to prison in default.
It all sounds rather complicated.
It is, and we haven’t even mentioned gifts, hidden assets, corporate veils and A1P1 considerations.
Often the real punishment felt by an offender is not the headline sentence, but the financial penalty that flows from a confiscation order.
The rules are incredibly complicated, and we often find fundamental errors and assumptions being made by financial investigators. Basic errors can result in wrongful calculations amounting to many tens of thousands of pounds.
In some cases, we can argue that the making of a confiscation order is so disproportionate that to do so would be unlawful.
Before entrusting your case to any other solicitor, ensure that they are up to speed not only on the basics of the offence with which you have been charged, but also in relation to confiscation.
John Howey, Senior Solicitor
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written, which may affect the information and advice given therein.