The purpose of confiscation proceedings is to deprive the defendant of the financial benefit that he or she has obtained from criminal conduct. In order to determine this, the court needs to decide whether the defendant has a criminal lifestyle. If the court decides that he or she does have a criminal lifestyle then the court calculates the benefit from general criminal conduct using the assumptions set out in the Proceeds of Crime Act (POCA) (2002). If the court decide that he or she does not have a criminal lifestyle, the court will instead calculate the benefit from particular criminal conduct (the actual offences of which the defendant is convicted).
Identifying a POCA confiscation case
The following factors need to be considered:
* Does the defendant have a criminal lifestyle as defined in s75 POCA?
* Has the defendant benefited from general criminal conduct?
* Has the defendant benefited from particular criminal conduct?
* Has a restraint order been obtained? A restraint order can only be obtained to preserve assets for a confiscation order and so confiscation will usually be pursued.
* The likely amount of the confiscation order, the greater it may be, the more appropriate it will be to require the court to carry out a confiscation inquiry.
* Whether civil proceedings are be pursued
* Bankruptcy of the defendant
* The feasibility of enforcing a confiscation order if one were to be made
* The question of compensation should be left out of account when considering whether to treat a case as a confiscation case.
Commit confiscation cases to the Crown Court
A person may be committed to the Crown Court for confiscation proceedings following a conviction of any offence, indictable or summary, in the Magistrates’ Court. Where the prosecutor asks the magistrates to do so, the court must commit the defendant to the Crown Court under this section.