Circular 011/2018: Criminal Finances Act: confiscation reconsideration
Published 1 February 2018
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This guidance is issued to raise awareness and provide a basic understanding of confiscation revisits and the relevant amendments introduced by the Criminal Finances Act 2017 (CFA). It is not a statement of law and is not intended to provide a comprehensive description or interpretation of the power. It should not be relied upon in the operation of the power or in any related proceedings.
Sections 19, 20, and 21 and 22 of POCA allow for the reconsideration of a confiscation order. For sections 19, 20 and 21, this is on the basis of evidence that was not available to the prosecutor at the time of the decision. Section 22 may be on the basis of property being realised for a higher value than assumed for the purposes of the amount on the confiscation order.
These sections allow, respectively, for the amount on the confiscation order to be increased either to reflect a higher benefit value (i.e. the amount that the defendant made from their crime) or an increase of the available amount (i.e. the amount they had available to pay a confiscation order).
The CFA makes two amendments in relation to reconsideration.
Section 32 of the CFA amends POCA to allow for reconsideration of a confiscation order even in relation to confiscation orders that have been discharged by Court order under sections 24 or 25 of POCA. Those sections apply respectively where there was either an inadequate amount to settle the order or there was only a small amount outstanding. The ability to reconsider a confiscation order applies to both application made under sections 21 and 22 of POCA.
Section 33 of the CFA amends the investigation powers in Part 8 of POCA. Widening the scope of the investigation powers will allow for a specific investigation to support an application to reconsider an order under section 22 of POCA. The definition of a “confiscation investigation” in section 341 or POCA is amended so that it effectively has four limbs. As a result of the amendment, a confiscation investigation is an investigation into:
- whether a person has benefited from his criminal conduct – this supports the ability to make a confiscation order
- the extent or whereabouts of his benefit from his criminal conduct – this also supports the ability to make a confiscation order
- the available amount in respect of the person – this will support the ability to apply for a reconsideration of a confiscation order under section 22 of POCA
- the extent or whereabouts of realisable property available for satisfying a confiscation order made in respect of him – this supports the ability to enforce a confiscation order once it has been made
Similar amendments have been made to the equivalent provisions in Scotland. Therefore the principles and procedures outlined above are also applicable in Scotland