Sean Kivdeh
Homerton College
University of Cambridge
Supervisor: Nicola Padfield
Confiscation Orders or Hidden Sentences
2013
1
Summary
This study is about the impact of confiscation orders on offenders and their families.
Confiscation is an increasingly important and controversial topic within the criminal
justice system. Although there have been a number of previous studies about proceeds of
crime, these have all focused on the enforcement mechanism. There has been no research
on the latter stage of confiscation orders to see their impact on those who receive them.
The three main aspects of this study are: (a) the impact of confiscation on offenders; (b)
whether this impact is such that it amounts to a second punishment for the same offence;
(c) and whether the suggestion that confiscation orders have a deterrent effect is correct.
The research was carried out by interviewing offenders and families of offenders. In
addition 3 other groups within the criminal justice system working with confiscation
orders were interviewed. These were Probation Service Officers, Lawyers and Judges.
These additional interviews were done in order to obtain perspectives, independent of
those personally affected by confiscation orders. The existing literature was considered
with a view to enhancing the results of the findings in the study.
The results here show that the impact of confiscation orders on offenders and families of
the offenders is severe, sometimes with devastating consequences. Offenders and families
of offenders consider the confiscation regime to be substantially unfair. The main reason
being that offenders are ordered to pay wholly unrealistic and exaggerated figures.
2
In reality confiscation orders go beyond just removing the money that the offenders had
made from their offence and become punitive in nature, amounting to a second
punishment for the same offence.
The suggested deterrent quality of confiscation orders is unproven and very much
doubtful. The results indicate that they may have the opposite effect and provoke more
criminality by leaving offenders under financial pressure after the completion of their
main sentence.
3
CONTENTS
Page
Chapter 1
Introduction
1
Chapter 2
Methodology
11
Chapter 3
Literature Review : The Evolution of Confiscation Orders 27
Chapter 4
Findings
41
Chapter 5
Discussion of Findings
65
Conclusion
76
Bibliography
79
Appendices
83
4
Chapter 1
Introduction
It has been 25 years since confiscation was introduced into the UK criminal justice
system. During this time a number of studies have considered the effectiveness of its
enforcement, but so far the impact of confiscation law on offenders has not been
examined.
This research is an exploratory study of the impact of confiscation orders on offenders
and their families. It is commonly accepted that confiscation orders are draconian in
nature. The justification for this is suggested to be their deterrent quality and the aim to
remove from offenders their proceeds of crime. In evaluating the impact of confiscation
orders the study also examines whether the confiscation regime in its current form
achieves these two objectives. It considers whether the final effect of these orders is in
reality the imposition of a second punishment for the same offence.
The current law means that a person convicted of a criminal offence, which has a
financial benefit, can be held liable for payment of the total amount even if he himself
received no benefit from the offence at all. This financial liability in the form of a
confiscation order is in addition to the sentence that the offender receives following his
conviction.
A hypothetical example is that of a security guard who opens the gate to a warehouse
allowing thieves to steal property worth £1,000,000. He is paid £1000 for his assistance.
He is the only defendant. His benefit figure for the offence can be held to be £1,000,000
5
rather than the £1000 he has actually made. This is because confiscation law holds that he
has momentarily assumed control of the property by opening the gate for the property to
be stolen (Ulph 2010).
Once the court has determined the benefit figure of the offence, it will decide if the
offender has the full amount of that benefit figure. If it is determined that he does not have
that benefit figure, the court will consider if he has any assets of his own available, which
could be confiscated to pay towards the benefit figure. This is so even if those assets were
lawfully acquired. If all of the offender’s assets are valued to be less than the benefit
figure, the confiscation order is made in the value of his total assets.
If it appears that the offender has no assets, the court will either assume he is hiding the
assets from his offence and make a confiscation order against him in the full amount
suggested to be hidden by him, or make a confiscation order in a nominal figure, such as
£1, for the time being, leaving the issue open for the prosecution to come back anytime up
to 6 years after the conviction, if they discover the offender does have assets (Sections 1922 Proceeds Of Crime Act 2002 (POCA)). Once the benefit figure has been determined,
the burden of proof is on the offender to show that he does not have sufficient assets to
pay the benefit figure and to establish how much he does have.
It is also important to note that the benefit figure in confiscation cases is not limited to the
benefit obtained from just the offence for which the offender has been convicted. In
certain offences, so called “Life Style Offences”, the law requires the court to assume that
the offender has had a criminal life style and therefore every asset or credit acquired by
6
him in the 6 years before the offence is regarded as having been obtained through crime
and will be added to the benefit figure unless the offender can prove otherwise (S. 10 of
POCA).
Any criminal offence can become a life style offence if (1) it has gone on for at least 6
months and the offender’s benefit was at least £5000, or (2) in the same case the offender
is convicted of at least 3 offences and he has benefited from each of them or (3) the
offender has in the past 6 years before the commencement of his current case been
convicted on at least 2 separate occasions of offences from which he benefited. Offences
listed in schedule 2 of the Act, such as drug offences, human trafficking, money
laundering etc. are considered life style offences per se (S.74, POCA).
Failure to pay a confiscation order will result in the imposition of a term of imprisonment
of up to 10 years consecutive to the original sentence for the offence (S.139 Powers of
Criminal Courts (Sentencing) Act 2000). The serving of the additional term of
imprisonment does not extinguish the confiscation order (S.38(5) POCA), which
continues with interest accruing at 8%. The offender can be sent to prison again for the
amount of the interest accruing (Home Office Circular 27/2005). The confiscation amount
and its interest, is then pursued indefinitely against the offender until it is discharged by
full payment.
The principle that no one should benefit from his own crime is understandable and one
which is adopted in many criminal justice systems around the world (Hodgson 1984;
Bowles et al 2005). However, the concern here is the way that the courts have interpreted
7
the words obtained and benefit. Their interpretation goes beyond what the offender
actually obtained from the commission of the offence. A momentary and transient
possession or control of property is regarded as the offender obtaining the total gross
value of that property (May [2008] UKHL 28).
The confiscation laws, which have created this process for the removal of the proceeds of
crime, are contained in the Proceeds of Crime Act 2002 (POCA). The historical
background to POCA and confiscation is important in considering how we have reached
this current level of severity in the law.
Section 43 of the Powers of Criminal Courts Act 1973 provided a general power for
forfeiture of property directly connected to the commission of crime, but not the proceeds
or profits of crime in general. This left the state of the law unsatisfactory to the extent that
criminals, particularly in drug related large-scale offences, were able to retain the massive
benefits of their criminal enterprises even when they were apprehended and convicted. As
long as their criminally obtained assets were not directly used for the commission of the
crime of which they were convicted, the assets could not be removed from them (Joint
Inspectorate Report, 2004).
This gap in the law often manifested itself in the fight against drugs and was highlighted
by the House of Lords in Cuthbertson [1981] AC 470, which involved a number of
defendants who had been supplying LSD drugs. The defendants had over the years
amassed property valued at £750,000. These included houses, paintings, cars, cash and
8
securities in Swiss bank accounts. The trial Judge decided to order the forfeiture of all of
these properties. In the House of Lords the defendant’s appeal was reluctantly allowed
and the forfeiture order set aside on the basis that English law did not allow for stripping
drug traffickers of the total profits of their criminal activities. There were no confiscation
provisions in the law.
In the aftermath of Cuthbertson, the Howard League commissioned a committee under
the chairmanship of a high court Judge, Sir Derek Hodgson, to consider the problem and
to make recommendations for the ways in which the law could deprive high ranking
criminals of their ill-gotten gains. Its 1984 report, which became known as the “Hodgson
Report”, recommended the introduction of confiscation proceedings in respect of net
profits from crime.
The Hodgson report formed the basis on which the first UK confiscation legislation was
created with the Drug Trafficking Offences Act 1986 (Alldridge 2003 p.77; Lord
Bingham in May [2008] UKHL 28 paragraphs 7-8). The 1986 Act provided the power to
confiscate the proceeds of crime in drug trafficking cases only. This was followed very
shortly by the Criminal Justice Act 1988, which extended the confiscation power to all
other crimes. The Drug Trafficking Offences Act was more severe in comparison. Under
the Criminal Justice Act the court was still left with the discretion as to whether it would
allow for confiscation proceedings in any case but the Drug Trafficking Offences Act left
no such discretion.
9
Subsequently both of these Acts were amended reducing the court’s discretion in
confiscation proceedings. These two separate regimes of confiscation were then
consolidated into one Act, POCA 2002. The joining up of the confiscation proceedings
for drug related offences with those for other more general crime meant that the harshness
originally intended for drug related confiscation now applied equally to confiscation in
other types of crime (Fortson 2011).
Under S. 6 of POCA the court must first decide if the convicted defendant has benefited
from his criminal conduct. Benefiting from criminal conduct is when the offender obtains
property as a result of or in connection with the conduct (S.76(4)-(6) POCA). Therefore
the interpretation of the words benefit and obtains in POCA are crucial in determining
what the amount of the confiscation order will be in each case.
The interpretation of these key words have been so broad that it has completely altered
what academics and practitioners thought was the intended purpose of confiscation - the
taking of profit of crime from the offender (Hodgson Committee 1984; Wasik 1984). As
revealed by case law the computation of the benefit figure and the interpretation of the
word obtain are perhaps the most controversial aspects of confiscation and arguably
responsible for producing results which are difficult to reconcile with principles of human
rights, natural justice and the rule of law (Lawrence 2008; Ulph 2010; Ashworth 2001;
Ashworth 2009).
10
In the case of May UKHL [2008] 28, the House of Lords summarised the current position
of the law: (a) the offender benefits from his criminal conduct when he first receives the
property. It is immaterial what he does with it later or what happens to that property after
he receives it, as long as he had control of the property even momentarily, (b) if a number
of offenders jointly obtain the total figure, the court can order the full total amount against
each of the offenders and (c) the benefit figure is the gross value and not the net profits of
the offence to the offender.
In May the court recognised that there may be a problem with the broad interpretation of
the words benefit and obtain in the case of offenders who play a very minor role, in that if
a person was paid a specific fee and held no interest in the property, he was unlikely to be
regarded as having obtained that property. It was explained in May that the person
obtained property if he owned it in law. However, it was emphasised that the courts must
determine the issue of ownership on the facts of each case, having regard to the common
law principles relating to ownership of property, which effectively left the concept of
ownership open to interpretation. As a result in reality the meaning of benefit and obtain
did not change.
A further difficulty with the decision in May is that it leaves Crown Court judges and
lawyers who have specialised in criminal law to deal with the unfamiliar areas of civil and
property law (Ulph 2010). Alldridge (2011, p.827) suggests that the main problem with
confiscation law is that the starting point in assessing confiscation is the concentration on
receipts rather than on profits. A problem that “the House of Lord in 2008…[referring in
part to the case of May,] failed to resolve”.
11
Following the decision in May there have been a number of other appeals to the Supreme
Court (replacement of the House of Lords judicial committee) in respect of the issue of
obtaining benefit from an offence. In the case Waya [2012] UKSC 51, the Supreme Court
largely followed the decision in May, but recognised that in certain cases regard must be
had to the overall proportionality of the confiscation order pursuant to Article 1 of the first
protocol of the European Convention, which is the entitlement to the peaceful enjoyment
of the individual’s possessions. However, it was emphasized by the court that this
judgment is not to be interpreted as giving a general discretion to Crown Court judges to
fit confiscation orders to the facts and justice of a case. As a result the position remained
very much as it was before.
The severity of the current position of the law in respect of confiscation proceedings can
be summarised into 7 points. Confiscation law allows for:
(1)
the removal of the gross proceeds of crime, rather than just net profits in the
pocket of the offender.
(2)
regarding the offender as obtaining the benefit of the offence even if he has
not in fact obtained that benefit and has passed it on in full to someone else.
(3)
the reversal of the burden of proof, so that the offender must prove the lawful
provenance of any property he holds.
(4)
the assumption of criminal life style going back 6 years without any necessity
to prove the commission of suggested earlier criminal offences.
12
(5)
the assumption by the court that the offender has hidden assets, without
requiring the prosecution to prove this.
(6)
the removal of legitimately acquired property as part of the offender’s
available property.
(7)
the creation of an indefinite financial punishment, which cannot be
extinguished even after the offender has served the additional terms of
imprisonment imposed for default in the payment of the order and the interest
on it.
This harsh interpretation of the law concerns the mechanisms of making the actual
confiscation order. The way that it is then enforced impacts on the offenders and their
families. It is this impact at the latter stage of the confiscation order, which has so far not
been focused on by previous studies and research. The extent of the impact that
confiscation orders have can indicate whether they actually form a punitive measure,
which is additional to the sentence for the predicate offence.
The justification for the severity of the law in this area is heavily based on the suggested
deterrent quality of these measures (The Hodgson Committee, 1984; Wasik, 1984;
Performance and Innovation Unit Report 2000). There is a general belief by politicians
that the harshness in the removal of assets by the current system of confiscation will
create specific and general deterrence by making crime unprofitable (Performance and
Innovation Unit Report 2000; Sproat 2009; Perry and Ailes 2010). However, so far there
has been no research to examine whether this assumption is correct.
13
The relative importance of confiscation orders within the criminal justice system can be
judged from the fact that each year there are about 4500 confiscation orders made in the
Crown Court (May [2008] UKHL 28; Bullock et al 2009; Ministry of Justice Statistics
Bulletin, 2010). Confiscation proceedings take up a significant amount of court time and
can last for more than 1 year (Bullock et al 2009), involving expensive protracted
proceedings. The Home Office estimates proceeds of crime to be about £15 billion a year
(Joint Inspectorate Report, 2010). As such, this is a highly significant part of the criminal
justice system’s landscape and it is a rapidly growing area. It is therefore vital that the
actual effects of confiscation orders should be studied.
Chapter 2
Methodology
This research was designed as an exploratory study into the actual impact of confiscation
orders on offenders and their families. The aim was to see if in practice they have the
effect of imposing a second punishment for the same offence and to examine their
deterrent quality.
14
In order to understand how these important legal measures within the criminal justice
system affect offenders and their families the following methods were pursued:
(i)
A search of the published literature. The next chapter is a review of that
literature, concluding that whilst there have been significant comments by lawyers
(notably Ashworth, Alldridge and Fortson), there has been no empirical
research on the recipients of confiscation orders.
(ii)
Interviewing. In total 10 offenders, 5 family members, 7 Probation Service
Officers, 4 lawyers and 3 judges took part in this research. The researcher
interviewed 8 of the offenders, who were in prison for defaulting in the
payment of confiscation orders. 1 offender, who was not in custody, was
interviewed by telephone. 1 offender, who was also not in custody, entered
email exchanges with the researcher. 5 offenders’ family members also
corresponded with the researcher through email. The researcher also
interviewed 7 Probation Service Officers (PSOs), 3 judges and 4 lawyers of
varying seniority who dealt with confiscation proceedings.
Methodological Approach
This is an unexplored area, where any researcher expects to come across a fair amount of
unstructured information. In these circumstances experimental or survey methodologies
on a quantitative basis would not be suitable, since they would almost certainly lead to a
loss of vital information, which is difficult to classify. “Previously unstudied attitudes and
actions cannot adequately be understood with a structured set of questions or within a
15
highly controlled experiment.” (Bachman and Schutt 2007, p.257). To maximise the
potential of this type of information it seemed sensible to adopt a qualitative approach,
such as interviewing, which allowed collection and analysis of more data.
Validity
Nevertheless, qualitative study presents certain limitations when it comes to codification.
The results cannot be measured on a scale or subjected to testing, which in turn causes
problems in assessing reliability and validity of the collected data. There is a lack of
agreement among researchers on how to achieve this (Creswell 1994). As a qualitative
researcher what you produce is a descriptive narrative, rather than a tool, which could be
used in subsequent studies (Robson 2002, p. 176). In the light of these shortcomings
adding a limited quantitative element to the study was viewed as a logical step to
addressing the problem. As a result the validity of the research findings was enhanced
using methodological triangulation.
A limited amount of quantitative data was collected from offenders and their families.
The subjects were asked questions regarding the background of their criminal cases and
confiscation orders, such as confiscation figures. Quantitative data helped to corroborate
the qualitative input.
At the stage of analysis again a limited degree of quantitative approach was adopted
across the data spectrum, including the qualitative input, to display the results of the
interviews and the emerging themes. It is widely accepted that in a qualitative research
16
“certain amount of the interview data could be quantified”, for example “percentage of
interviewees answering particular questions in particular ways…” (Maguire 2008, p.276).
In the context of the data display such answers can be presented as ‘yes’ or ‘no’ entries.
In all, this research used two types of triangulation methods referred to by Denzin (1988)
as methodological triangulation and data triangulation.
In terms of data triangulation the interview method was enhanced with the use of other
methods of data collection, such as review of published literature, including previous
Home Office and Joint Inspectorate reports involving discussions and interviews with
staff from enforcement agencies (Bullock et al 2009; Joint Inspectorate Report 2004;
Performance and Innovations Unit 2000; Joint Inspectorate Report 2010; Levi and
Osofsky 1995; Bullock 2010; Brown et al 2012; Ministry of Justice Statistics Bulletin
2010).
Another form of data triangulation works by comparing perspectives of different types of
stakeholders. Views of the offenders and their families were compared with the views of
other major stakeholders involved in the confiscation regime, such as judges, lawyers and
Probation Service Officers. This provided an independent source for validating the data
reported by the offenders.
Statistics
17
Originally it was hoped that the national statistics could be the starting point. Statistical
data could provide an additional tool for the assessment of validity. Enquiries were made
as to how many prisoners were held nationally for breach of confiscation orders. By
comparing these figures with the number of confiscation orders issued it would be
possible to get some idea of whether or not confiscation orders were converted into prison
sentences in the majority of cases, rather than resulting in the confiscation of ill-gotten
gains.
In the early stages of the research it was discovered that information about confiscation
orders in the public domain was scarce. One of the statistics easily accessible are called
“Provisional Quarterly Criminal Justice System Information”, published annually by the
Ministry of Justice (MOJ). This is made available on the internet under the MOJ’s
statistics bulletin web pages. These statistics are very limited and presented in generic
form (Ministry of Justice Statistics Bulletin, 2011).
For example the statistics published on 17 February 2011 for the period ending in
September 2010 has only 1 page (p.7) on “Confiscation”. The report states that the
amount collected from confiscation and compensation orders between April and
September 2010 was £30m. That compares with £28.2m obtained between April and
September 2009. The report also states that between April – September 2010, 2698
confiscation orders were obtained. Apart from the fact that it does not provide separate
figures for confiscation, there are further problems.
18
There are no figures provided in this report for the number of defaults in the payment of
confiscation, the number of activated imprisonment terms for default of payment, or an
explanation as to what proportion of the £30m recovered in 2010 was due to assets which
were already seized at the time of arrests and the assets which were actually recovered by
enforcement following a confiscation order. The enforcement statistics in the following
pages become even more general and are based on all financial orders and impositions,
which include fines.
A joint data collection system was set up in April 2004, called Joint Asset Recovery
Database (JARD). All data relating to proceeds of crime is fed into JARD by the
enforcement agencies. However, the data held by JARD cannot be accessed by general
public.
In order to obtain some of the statistics from JARD, the researcher wrote to SOCA and
the CPS requesting access. The letter to SOCA received no response. The CPS responded
by referring the researcher to SOCA, who maintain the JARD system.
In respect of the number of prisoners currently serving confiscation default sentences, the
researcher wrote to one of the directors of NOMS and also requested the information from
the MOJ under the Freedom of Information Act 2000 (FOIA). The director from NOMS
responded by email stating that this information is not nationally held, and that it is also
not known how many confiscation orders are defaulted each year. The MOJ responded by
stating that this information is not held centrally and that to answer this question it would
19
involve checking each individual prisoner file in the country, which would be costprohibitive.
As a result the researcher wrote to a barrister Lord Thomas QC, who is one of the Liberal
Party peers, and asked him for this information in a number of questions. Lord Thomas
agreed to ask these questions from the Home Office and the MOJ in the House of Lords.
A copy of these questions is in the appendix D to this paper. There has been no response
as yet.
Interviews
The four groups of individuals selected for these interviews were (a) offenders who had
either received confiscation orders or who were going through confiscation proceedings
and families of offenders in that position, (b) Probation Service Officers who had the
function of offender management, (c) lawyers who specialised in confiscation law and (d)
judges.
The interviewing technique was selected as the optimal method of data collection. As
Robson (2002) noted “face-to face interviews offer the possibility of modifying one’s line
of enquiry, following up interesting responses and investigating underlying motives in a
way that a postal and other self-administered questionnaires cannot.” (Robson 2002, p.
272). In an area so substantially under-researched, the flexibility this type of enquiry
offers was considered to be the best way forward.
20
Interview styles
Semi-structured interviews were decided on as best-suited for this type of study. Using
this interviewing technique the researcher was able to ask specific questions with
standardised wording expecting particular types of answers, which would then be easy to
analyse. At the same time more general questions were asked, which would prompt the
subjects to reflect on their experiences, views and feelings in an unhindered personalised
way. This hybrid technique offered the advantages of both structured and unstructured
approach. It allowed the researcher to engage more actively with the interviewee than
could be done in a standard, survey-type questioning, because the researcher could listen
to the explanations of the subject responding to questions and ask follow-up questions
“tailored to the preceding answers, and seek to learn about interrelated belief systems or
personal approaches to things.” (Bachman and Schutt 2007, p. 281). At the same time
this technique produced information in a form which was possible to codify.
It proved beneficial to take a different approach to interviewing different groups of
participants. The four groups of interviewees fell into two different types of experiences
of the confiscation regime. The first type is referred to as category A in this research.
These are the offenders and their families who have first hand experience of confiscation,
being on the receiving end of these orders. They are the primary focus of this study. The
second type is referred to as category B. These are the PSOs, lawyers and judges, who had
legal and practical experience of observing or conducting administration of confiscation
orders. This is a supporting group added to test the validity of the data reported by the
principal subjects of the study, as explained above.
21
As the category B interviewees had no immediate access to quantifiable information, it
was sensible to question them primarily about their views and experiences using more
general questions. The researcher would prompt the subjects to give their opinions on a
particular topic with “do you think?” combination at the core of each question. “What do
you think about confiscation orders?” “Do you think confiscation orders have deterrent
effect?”
King and Wincup (2008) advocated more open-ended techniques in the initial stages of a
research project in an area relatively under-researched. This technique was said to “map
the terrain and throw up ideas for theorization” (King and Wincup 2008, p. 32). “In the
latter stages [...] one is more likely to close things off in a more structured manner.” (King
and Wincup 2008, p. 32). Following this suggestion the researcher started his questioning
with the general enquiry of whether or not the subject was satisfied with the current state
of law on confiscation. In this way their satisfaction could be quizzed with apparently
controversial aspects of the law, such as double or triple counting of the benefit figure,
and their dissatisfaction could be explored, prompting the subjects to express their views
on particular aspects of the regime. By using this technique the interviewer took a flexible
approach, with the subsequent questions contingent on the answers given to the previous
ones. The interview protocol is at Appendix A. The summary of responses is in Tables 5,6
and 7 at Appendix B.
The situation was different with the offenders interviewed. In the initial background
questions they were able to give quantifiable information, such as circumstances of their
own case, including the benefit figure, the amount of confiscation, etc. The structured-
22
type questioning with a close-ended approach was appropriate to elicit particular details
of each individual case background before moving on to the subjects’ views about the
proceedings as a whole. The background answers about their own particular case would
help to assess the veracity of the subsequent answers they gave to the more generalised
questions about how they viewed confiscation orders. The interview protocol is at
Appendix A. The summary of responses is in Tables 1 and 2 at Appendix B.
The validity of data gathered through self-reporting may be compromised by the
temptation of the research subjects to bolster their cases, particularly when they have a
grievance against the system they are reporting on, like the subjects in category A. To
address this deficiency, the researcher sought to assess the accuracy of this type of data by
considering the views of some of the other stakeholders in the criminal justice system,
who deal with offenders and with confiscation orders, such as the subjects in category B.
To be able to carry out this assessment in the limited time available for this research, a
number of the interview questions for all of the four different interviewee groups where
the same.
Interview Protocol
The full protocol is attached in Appendix A. Each interview had four distinct parts –
Introduction, Ethical Issues, Questions, Conclusion.
Interviews started with an introduction where the purpose of the interview was explained.
The interviewee were reminded that participation was voluntary and they had the option
23
to withdraw at any stage. The consent was taken for audio recording of the interview. In
the case of detainees further ethical concerns had to be addressed. They were additionally
made aware that this research had no powers to affect any changes in their own sentence
and confiscation order. All interviewees were assured they would remain anonymous.
Sampling, Selection and Gaining Access
Taking into account the nature and the context of this study, together with the time
limitations involved, it was considered that a Purposive Sampling method would be the
most appropriate approach compared to other available avenues of sampling.
Although some researchers regard purposive sampling as almost synonymous with
qualitative research (Palys 2008), this method is a “nonprobability” sampling method and
therefore carries the inherent risk of not being generalizable (Bachman and Schutt 2007).
The researcher selected the four groups of interviewees because of each group’s unique
position and direct experiences for the purpose of addressing the key inquiries of this
study. This is an acceptable approach in purposive sampling and is sometimes referred to
as “Judgment sampling” (Rubin and Rubin 1995; Bachman and Schutt 2007; Robson
2002).
One reason for the selection was to obtain a fuller picture by considering both the subjects
of the confiscation enforcement and the other stakeholders involved with its operation.
Rubin & Rubin (1995) suggested that the purposive sample should be based on
24
individuals who are particularly knowledgeable, willing to talk and represent the “range
of points of view” about the issues being considered by the study. This suggestion was
pursued as much as possible in the purposive selection of the four groups to be
interviewed.
Once the four groups were chosen, the sampling from each group was more random. In
selecting offenders’ sample, the lack of records seemed to be the greatest challenge. The
researcher approached a number of prison governors, one governor of a male prison
confirmed that he had ascertained that there were a number of prisoners at his prison who
were either serving a default sentence, or were going through the process of confiscation.
After considering the proposal for this study, he gave his approval. Approval from NOMS
research department also had to be obtained. The agreement of the governor was helpful
in speeding up the process of approval from NOMS.
Letters inviting participation were sent out and circulated in the prison. Ten prisoners
initially responded confirming their willingness to take part in the research. On the days
of the interviews, 2 of the prisoners became unavailable and could not take part.
In order to find families of offenders and perhaps enhance the offenders’ sample, the
researcher employed two further methods. The first was to ask a number of solicitors, if
they would consider inquiring from former clients, who had been through the confiscation
procedure, whether they would consent to be interviewed themselves or for their family
members to be interviewed in this research.
25
The second method was an advert on the internet through the “Inside Time” newspaper,
which has a wide circulation including within prisons and on the internet. A broad outline
of the objectives of the research was explained in this advert. Those who responded were
family members of offenders affected by confiscation orders and some of the responses
were from offenders themselves.
This first method proved to be a difficult one, in that the solicitors found this to be time
consuming and hard to re-establish contact with former clients. This produced only one
member of an offender’s family and one offender.
The second method proved to be more effective. There were 10 responses – four from
family members and six from offenders. However, only three family members and one
offender gave sufficient information to use in this research. One more family member was
quoted once, but could not be used more than that, again because of the lack of
information she provided.
Where the Probation Service is concerned, the researcher was fortunate enough to have
support of one of the directors of the Probation Service, who had expressed a keen interest
in the research. Access was approved after the director considered the full proposal. Three
probation areas took part in the research. This stage of the selection was made more on
the basis of an “availability sampling” method. The “elements are selected because they
are available or easy to find” (Bachman and Schutt 2007).
26
Given the limitations in time for this study, this method was chosen as the most suitable.
The probation officers from all three areas were asked beforehand if they would be
interested to be interviewed and share their experiences and views. 7 Probation Service
Officers were available and were selected.
The researcher managed to secure interviews with 3 judges and 4 lawyers by asking them
directly if they would take part in the research. Two of the lawyers were of considerable
experience in confiscation proceedings, including at the appellate level and also had
written extensively on the topic.
The access to judges presented challenges of a different sort. Initially the researcher made
contact with a number of judges by direct telephone calls and emails. A number of judges
happily agreed to take part in the research. However, before the first interview with a
judge, the researcher’s supervisor discovered a policy document from the Judicial Office
entitled “Judicial Participation in Research Projects Guidance for Researchers”. This
document states that approval must be obtained from the Judicial Office at the Royal
Courts of Justice in research involving judges. The document informs researchers that
approval would not be granted for postgraduate masters course and below. This note was
brought to the attention of the judges who were being invited to take part in the research.
One circuit judge and one recorder agreed to continue taking part in the research, as the
arrangements for the interview had already been made and the field of study in this
research had been carefully explained to them. In addition, a retired Court of Appeal
judge also agreed to take part in the study.
27
Access to lawyers was considerably easier as the researcher himself is a legal practitioner
and was able to ask a number of his colleagues if they would take part in this research.
Data Recording and Analysis
The interviews lasted between 25 and 40 minutes. In the case of some judges and lawyers
the interviews went for as long as 1 hour. All of the interviews were recorded on an iPad
and the researcher was also making hand-written notes in the course of the interviews.
The interviews were transcribed by the researcher personally and later checked to assess
their accuracy and make necessary corrections. The interviews were then analysed
without using any software.
The method of analysis was adopted from Miles and Huberman (1994, pp. 245-6). The
essence of their technique was: ‘We aim to account for events, rather than simply to
document their sequence. We look for an individual or a social process, a mechanism, a
structure at the core of events that can be captured to provide a causal description of the
forces at work.’ With this in mind they devised a technique, which has three main stages –
data reduction, data display and conclusion drawing.
At the stage of the data reduction the researcher looks for the key points in the subject’s
responses. That helps the researcher to produce summaries and abstracts, which then can
be standardised and organised by analysing similar data across the interviews.
28
Data display allows the researcher to present the data in user-friendly form, which would
make general trends clearly visible and easily accessible to the end users of the research.
Tables is one of those commonly used forms.
The final stage is the conclusions and verifications. Miles and Huberman (1994) stress
that this process begins from the start of the data collection when you note patterns and
draw parallels. At the final stage you tighten your findings, presenting them in a concise
conceptually sound form. This should be accompanied by a verification process, which is
essentially the researcher keeping himself on his toes, constantly asking himself questions
like ‘is it plausible?’, ‘are there independent evidence confirming this conclusion?’
Following this guidance the researcher listened to the interviews writing down the key
points. His interview notes were very helpful in this respect as the key issues and general
tendencies were emerging already at those early stages. Combining these two the
researcher was able to collect the data, which could later be presented in a form of a table.
Data presented in this form was easy to analyse. Tables also proved to be a useful tool in
demonstrating the validity of the conclusions.
29
Chapter 3
Literature Review: The Evolution of Confiscation Orders
The studies, which have so far touched upon confiscation orders, have been aimed at the
general concept of proceeds of crime and the efficacy of the measures put in place to
remove them from the offenders. There is undoubtedly a gap in the published literature
about the impact of confiscation on those who receive them. This chapter will explore in
more detail the Hodgson Report and the theoretical justification behind the harsh nature of
the current confiscation regime, which is based on (a) deterrence and (b) the aim to
remove from the offender the proceeds of his crime. Furthermore, the impact of
confiscation will be examined within the concept of punishment.
The Hodgson report
The Hodgson recommendations, so far as confiscation is concerned, included the
following:
30
“ Criminal courts should have the power to order the confiscation of proceeds
of an offence of which the defendant has been convicted… There should be a
prescribed minimum amount below which
no confiscation order should be
made…” (Recommendation 9, p. 151).
“The object of confiscation order would be to restore the status quo ante the
offence and, therefore, to reach only the net profit made by the defendant…”
(Recommendation 12, p. 151).
It is apparent that the committee recommended for the law to have clear limitations – (1)
not to target small time offenders; (2) not to go beyond net profits.
The lack of resources limited the research of the Hodgson committee, particularly in
comparative law. The committee did consider what the law on confiscation was in other
jurisdictions, such as the USA and Australia, and the trends, which were being followed
in those countries at the time. However, there was no detailed analysis of how the law
worked in practice in those countries, and reliance was placed mainly on secondary
sources.
One of the difficulties with the Hodgson report was that the committee did not deal in
much detail with the procedure to be adopted in the event of the confiscation proceedings
being disputed, particularly on the facts. For example the report did not deal with whether
prosecution or the defence should have the burden of proof in such factual disputes
(Wasik 1984). Overall the Hodgson report focused on the mechanisms for making the
31
confiscation order and did not consider the latter stages or the impact of these orders on
offenders.
In the event some of the key recommendations of the Hodgson report were ignored by the
legislator, which resulted in the creation of a more punitive and stringent approach to
confiscation. Sir Derek Hodgson, the chairman of the committee, later wrote that the
confiscation legislation is more draconian and far reaching than the committee had
expected (Mitchell et al 1992, in the Forward).
The impact of confiscation orders
The influential study of Levi and Osofsky (1995) into the confiscation regime, which was
commissioned by the Police Research Group of the Home Office, focused on the working
structures of the confiscation system and its efficiency and involved interviews with
enforcement agencies. The most compelling finding of the study was that seven years
after confiscation proceedings started operating in this country relatively few “Mr. Bigs”
of the criminal world were being hit by confiscation proceedings. The main purpose
behind the introduction of confiscation into the UK criminal justice system was not being
met.
It appears that because of the difficulties in targeting Mr Bigs the system turned its
attention to lower level offenders. A Joint Inspectorate report (2004) entitled “Payback
Time” found that if in recovering proceeds of crime the system targeted offenders “lower
down the pecking order” who were more accessible to law enforcement agencies, this
would cause disruption to the work of the higher level criminals. There was no attention
32
in this report to what sort of effect confiscation orders and this enforcement policy would
have on the offenders “lower down the pecking order” or the consequences of this effect
in the long run.
Another finding of Levi and Osofsky (1995) was that the confiscation system was being
operated and enforced in an inefficient way. They concluded that one of the problems
contributing to this was the lack of motivation and incentives for the enforcement
agencies. This concern has since been addressed.
On 5th October 2009 the Times newspaper carried an article which stated that under the
Freedom of Information Act the newspaper had obtained some statistical information
from the Revenue and Customs Prosecution Office (RCPO), which revealed that their
senior staff responsible for pursuing confiscation proceedings had been paid £44,000 in
bonuses linked to “hitting confiscation targets” (O’Neill 2009). The data revealed that this
prosecuting authority receives 18.5% of the money seized from people subjected to
confiscation. The report also found that the “Metropolitan Police had recovered £18.7
million in confiscation proceedings in 2007-08 of which £9.3 million went to the Home
Office while the force itself received £5 million”.
A report from the Lincolnshire Police Authority’s Financial and Strategy Committee
reveals that there are Home Office annual confiscation targets for the police forces. This
police force’s target for 08/09 was £1, 267,000. They obtained £587,396.20 in that period.
The report states that the Force will receive about £80,000 of this under the Home office’s
33
“incentivisation”, which was increased from 15% to 18.75% from October 2008
(Lincolnshire Police Authority, 2009).
Ulph (2010, p.278) comments that “the confiscation system can easily be perceived to be
one which is bent on stripping offenders of property in an efficient manner. This
impression is reinforced by the fact that the prosecution is provided with targets which
should be met…victim and offender seem to be subsidiary to this process”.
The same year the Joint Inspectorate (2010) reports that the confiscation system operates
in a manner which is just to the defendants. The focus of this report was on enforcement.
It considered police and CPS case files without interviewing offenders and examining the
impact of confiscation on them. It is difficult to see on what basis the Joint Inspectorate
came to its conclusion.
There are two further matters which have to be considered in order to assess the impact of
the confiscation orders. The first is its effects on the offenders’ families. Bullock (et al,
2009) reveals that the home or property of the offenders is often the most valuable asset
they have and that subsequent to the commencement of confiscation proceedings many
spouses of the offenders take steps to claim their matrimonial interests in the house
(Bullock et al 2009).
34
Levi and Osofsky (1995) identified another problem, namely that judges and lawyers
were not familiar with confiscation proceedings. The study described the confiscation
system as “alien grafts upon the criminal justice system”. This finding is like a thread that
runs through the confiscation system from its inception up until now. The Joint
Inspectorate report “Payback Time” (2004) revealed that many opportunities for asset
recovery were still being missed and many of the key players were and sometimes there
was widespread lack of awareness of this process.
Another Joint Inspectorate report (2010) again found that defence lawyers lacked detailed
knowledge of confiscation laws, which might be due to the lack of interest in the area,
because of the lack of funding and difficulties in the access to offenders after conviction.
The same thing was again found in the study by Bullock (et al 2009).
The Benefit Obtained
It was first reported by Levi and Osofsky (1995) that the financial benefits of offences had
been assessed in ‘over-optimistically large figures.’ Bullock (et al 2009) was perhaps the
most revealing report to date on the statistics of confiscation proceedings. This was a
research, which heavily relied on data from JARD for the period 2006/07. The report
focused on the “attrition rates” of confiscation proceedings. This is defined in the report
as the amount of loss (reduction) of the figures originally assessed by police Financial
Investigators to be the value of the benefit obtained by the offender(s) as against the
amounts actually recovered. The most striking revelation from that report was that only
35
5% of the offender’s financial benefit, as assessed by Financial Investigators, was
recovered after confiscation orders had been made.
Bullock (et al 2009) provides support for Levi and Osofsky’s (1995) finding that the
confiscation system is hitting few Mr Bigs. In fact, this report finds that some of its
interviewees, who included judges, believe that the system is now directed predominantly
at minor criminals or as one judge put it at “subsistence level offenders”. The report
shows that confiscation orders between £100,000 to £1million have a recovery rate of
only about 35%. But this includes assets immediately seized, perhaps at the time of the
arrests and not only those recovered due to successful enforcement after the making of the
confiscation orders. More significantly the report confirms that only 0.5% of all
confiscation orders made were above £1million. By contrast, the majority of the
confiscation orders made (48%) were for less than £1000 and 20% were for £10,000 to
£100,000 (Bullock et al 2009).
The report also estimates that in the first 6 months after the making of the confiscation
orders there was only a 5% recovery rate. Other reports confirm that the Home Office’s
own estimate of the value of proceeds of crime is in the region of £15 billion per annum,
representing about 2% of the GDP. Bullock (et al, 2009) shows that for the period
2006/07 the total amount of the confiscation orders made by the court was £146.3 million
and only about one-third of that, £55.6 million was actually recovered.
36
It would be of assistance for cost-benefit analysis to compare this figure with the costs
involved in the obtaining and enforcement of confiscation orders. There are no specific
national figures available which would show how much is spent annually in obtaining and
attempting to enforce confiscation orders or the cost of imprisonments for default in the
payment. One of the factors that Becker (1968) takes into account in his assessment of
increasing deterrence is the cost of imposing the sanctions or the cost of increasing
detection (Bowles et al 2005). Until we have the necessary figures, we will not be in a
position to properly assess deterrence.
Deterrence of Confiscation
Perhaps the most significant departure from the Hodgson recommendations was the
legislator’s decision not to aim for restoring the status quo by removing just the net profits
of the crime committed, but to approach the calculation in a much wider interpretation of
the phrase “proceeds of crime”. The thought process behind this wider and consequently
harsher interpretation of what constitutes an offender’s benefit from his criminal conduct
was in the politicized ideas of deterrence and the moralistic principle of ensuring that an
offender did not benefit from his criminal acts (Alldridge 2003; Ulph 2010).
During the debate stage of the Criminal Justice Act 1993 Tony Blair (at the time Shadow
Home Secretary) stated that “ Draconian powers are fully justified because of the
appalling evil that they are designed to counter. It is clear that confiscation orders have
been of considerable use.” (HC Debates 14 April 1993 vol. 222 col 870).
37
Removal of the proceeds of crime by various enforcement agencies is a principle based
mainly on the philosophy of deterrence (Hodgson Committee 1984; Rezvi [2002] UKHL
1; Performance and Innovation Unit 2000). In the classical deterrence theories “someone
refrains from committing a crime because he fears the certainty, swiftness and or severity
of formal legal punishment” (Paternoster and Bachman 2001 p.14; Beccaria 1778).
However, there are a number of general difficulties with the classical deterrence theory
and a number of particular difficulties in its application in the context of the confiscation
regime in this country.
As far as general deterrence is concerned, the approach by politicians through rhetoric
such as “We shall help turn the tide against criminals. We will deter people from crime by
ensuring that criminals do not hang on to their unlawful gains” (Performance and
Innovation Unit Report, 2000), may be too simplistic as a policy of crime control.
The idea that if the offender faces the certainty of losing benefits of his crime he will
make the rational decision of opting out of criminal conduct ignores all other
criminological assessments of the reasons for offending, such as desperate financial
circumstances, inability of some offenders to make rational decisions all the time, peer
pressure, environmental influences and drug dependency (Cullen and Agnew 2006).
This Machiavellian policy of linking crime control to public demand for severity in
punishment is what Bottoms (1995) identified as “populist punitiveness”, where
politicians use for self-serving political purposes what they portray as the public’s
38
punitive requirements. Young (2003 p. 41) argues that it is not just politicians who create
this apparent popular punitiveness, but the regular mass media coverage of crime together
with economic and “ontological insecurity” in late modernity, which pushes public
opinion into a “pessimistic and vindictive” mood. In turn politicians bang the law and
order drum, rather than responsibly addressing these public concerns by drawing on
research evidence and expert opinions.
This, as a political policy, seen as a “ populist and punitive drive … linking penal policy
with the sensed public view” (Ulph 2010), rather than a serious criminological method of
crime control, may attract certain level of public opinion, because it resonates with “the
common sense belief that people avoid things that are painful, whether hot burners on
stoves or the threat of imprisonment” (Pratt et al 2006, p.368).
In fact, the idea that deterrence policies on their own affect criminal conduct has been
undermined by empirical research, which shows that the results are far from conclusive
(Hirsch et al 1999). A 2006 study, which carried out a systematic review of the main
research on deterrence theory using meta-analysis as a method, concluded that “the causes
of criminal conduct are multifaceted and extend far outside the limited range of deterrence
theory” (Pratt et al 2006 p.383).
As for the particular difficulties of applying classical deterrence theory to confiscation
laws, the main flaw in the notion that harsh laws act as deterrent is that it assumes there is
a widespread public knowledge of not only the existence of confiscation laws, but a
39
knowledge of how they work. However amongst the public, “confiscation orders are not
well understood by anyone other than specialists in the field” (Ulph 2010, p. 278). This is
more of a commentary by Ulph, rather than findings based on empirical research in this
country. However, Bullock (et al 2009) reveals that the respondents in their study thought
that many offenders do not have “in-depth knowledge” of the confiscation proceedings.
There was also one empirical study in Germany in 1992, which concluded that the risk of
removal of illegal gains has “hardly any ex ante effect on potential criminals in the
decision whether or not to commit the crime” (referred to in Bowles et al 2005, p.284).
The study by Von Hirsch (et al 1999) of the relationship between deterrence and sentence
severity concluded in part that although a review of the research on deterrence reveals
some convincing evidence that in some situations deterrence does work, in that ordinary
people can be deterred by their perceptions of the available sanctions, however as far as
the severity of the sanctions and the increasing of that severity, referred to in that study as
“marginal deterrence effect”, is concerned, there is no basis for inferring that an increase
in severity would enhance deterrence. The measurement of this effect is very problematic
in any event.
More severity in punishment does not necessarily deter criminal conduct or bring about
more compliance (Hirsch et al 1999; Sherman et al 1998). Some studies show that in fact
it may result in more offending by lowering the individuals’ estimates of getting caught in
the future, known as the “resetting effect” (Pogarsky and Piquero 2003). This is based on
the idea that some offenders will consider getting caught to be due to bad luck and believe
that the chances of getting caught again, given their acquired experience, will be too
40
unlucky. This in turn leads to the “reset” of their perceptions of sanction threats (Pogarsky
and Piquero 2003). These findings show that the threat of punishment in relation to the
future decisions of individuals is much more complex than the early deterrence theorists
assumed.
Levi and Osofsky (1995) also found that the enforcement agencies they interviewed did
not consider that the confiscation of proceeds of crime would be a deterrent. These
general views on deterrence expressed by the enforcement agencies in 1995 are supported
by the views expressed by their colleagues in 2009 (Bullock et al 2009).
It is hoped that the results of the current study will enhance the findings on this issue by
adding an extra dimension, namely the views of the people who are the subjects, rather
than operatives of the enforcement regime.
Are confiscation orders a second sentence?
To establish whether confiscation orders are punitive by nature we must first define
punitiveness. O’Malley (1999) suggests that if the particular sanction that one is
considering involves a greater or more severe intervention than the range of sanctions
proportionate to the offence, then that particular sanction is punitive, because it is in
excess of what is necessary. Cohen (1994) sees punitiveness as a form of coercion,
formalism, moralism and the infliction of pain on the individual.
41
It would follow that in deciding whether confiscation proceedings are a form of
punishment, their impact on the offenders must be a determining factor. If the impact of
confiscation can be successfully identified with the concept of punitiveness, then it can be
defined as punishment. Since this impact has not so far been studied, there is very little
material, which could help to assess the current position on the issue.
The position in English law was stated in Price [2009] EWCA crim 2918. The Court of
Appeal held that a confiscation default sentence is not a punishment for the offence, but a
penalty for non-payment.
In the context of Article 6 of the ECHR, which provides guarantees for a fair trial in
criminal proceedings, previous European cases have decided that confiscation
proceedings are not criminal proceedings and therefore article 6 cannot be relied on
(Phillips v UK [2001] 11 BHRC 280 and Briggs-Price [2009] UKHL 19). However, these
decisions do not amount to saying that confiscation orders are not a punishment.
In the absence of empirical data this issue cannot be taken any further. At the same time it
is important, because if confiscation is a second punishment for the same offence, it will
breach one of the most fundamental principles in English law and beyond – the rule
against “double jeopardy”.
42
The rule against “double jeopardy”, in that a man cannot be punished twice for the same
offence, has been recognized in the common law for centuries. For example Blackstone in
the 1760s makes reference to the “universal maxim of the common law of England that no
man is brought into jeopardy of his life or limb more than once for the same offence”
(Blackstone 1768). The same principle referred to as “ne bis in idem” [no one should be
punished twice for the same offence] has been recognized in European jurisprudence also
for a long time (Vervaele 2005). Article 50 of the EU Charter of Fundamental Rights
provides for the right not to be punished twice in criminal proceedings for the same
offence.
In assessing the effects of confiscation on the offenders this study will attempt to shed
some light on whether or not confiscation constitutes double jeopardy.
On the whole in terms of published literature about the impact of confiscation orders on
offenders and their families, there is very little empirical research. Statistical data is also
scarce on this subject and difficult to access. It is argued in this study that as far as the
confiscation regime is concerned, perhaps the focus has so far been on the first stages of
these proceedings and the later stages have been ignored by the researchers and lawyers.
The little material that does exist in terms of previous studies and research reports are all
based on the perspectives of the enforcement agencies and prosecution orientated. It is
hoped that this limited study would provide some awareness of the latter stages of the
confiscation process and the aftermath of these orders.
43
Chapter 4 Findings
This chapter will consider the input received through interviews and e-mail exchanges. It
will explore the views of the subjects in two main categories of the research: category Aoffenders and families of offenders and category B - Probation Service Officers (PSOs),
lawyers and judges. The three aspects of the study - impact, additional punishment and
deterrence - will be looked at through the main theme highlighting whether there was
consensus or disagreement among the participants on each of the themes within a
category and between the two categories, with particular emphasis on the reasons given
for conclusions.
44
The Impact of confiscation was assessed through the following themes: 1) fairness of the
confiscation regime; 2) artificiality of the benefit figure; 3) confiscation of legitimately
purchased property; 4) assumptions in life style cases; 5) effect of the confiscation orders
on families; 6) standards of legal representation in confiscation proceedings.
The issue of second punishment was discussed with the participants directly by a
straightforward question, inviting them to agree or disagree and explain reasons.
The issue of the deterrent quality of confiscation orders was explored through two themes:
1) the knowledge and understanding of confiscation orders before and after arrest and 2)
the overall views on the issue of deterrence and confiscation orders.
The data summary is presented in 7 tables, which are attached in Appendix B. The rows
in the tables represent the interviewees and columns the themes. The first two tables
summarise information obtained from offenders. Table 1 represents offenders’ views on
confiscation in general and on their personal cases. Table 2 summarises the background of
their respective cases, giving details of their confiscation orders. It contains
predominantly quantitative information. Tables 3 and 4 are corresponding tables for the
information collected from offenders’ family members. Table 5 summarises opinions of
judges. Table 6 represents views of lawyers. Table 7 sums-up views of probation officers.
The last three tables contain more commentaries than the first four, because judges,
lawyers and PSOs often qualified their answers, and it was difficult to do justice to these
data by presenting them in purely quantifiable form.
45
The fairness of the confiscation regime
Generally, all of the subjects in category A found the confiscation regime to be unfair
with the primary reason being the unrealistic amounts ordered. At the same time many
offenders considered that it was understandable to have a process, by which an offender’s
actual profit from his crime could be removed in addition to the punishment imposed for
the original offence, but felt that the current confiscation system was substantially unfair
and arbitrary to the point that it made no sense.
“I am left with nothing. It’s set me off to fail hasn’t it ? Because straight away
they are going to come and say: ‘I want that 10 grand’, pestering me for this
10,000 that I haven’t got. Do you think if I had the £10,000, I would be sitting in
jail now? That would’ve been paid and I’d been out 3 months ago.” (Offender 1).
“It’s crazy, it’s £56,000. If I had it, I’d pay it straight off. If I was hiding it
somewhere, why would the family be put through all this, why would I be sitting in
jail? Why does it need me? A little bit of time to get healthier, maybe get a job and
pay something off monthly, rather than send me back to prison on taxpayers’
money. And it’s still gonna be there when I get out. It’s just a pointless exercise
and I just don’t understand it.”(Offender 6).
Offender 6 was a young disabled man with 3 small children. He was a first-time offender
pleading guilty to an offence of benefit fraud arising from undeclared working and
receiving income for a number of years. He was sentenced to 26 months imprisonment
and served half. He was out of prison for 3 years, and during that time had a brain tumour
46
removed. He was returned to prison because of the activation of the 18 months default
sentence for non-payment of the confiscation order in the sum of £56,000.
The prosecution had been unable to show he had this amount. As a result the court had
ordered the sum on the basis that it must be available to him as a hidden asset, since he
had failed to prove otherwise. On his account the benefit figure was based on a substantial
over-estimation of his income and social security benefits. Any income or benefits he had
drawn had been spent on living expenses and payments of rent over the years. When he
leaves prison he will have £25 a week deducted from his benefits by social security in
respect of his benefit overpayments. This is in addition to the confiscation order, which
will remain his debt until he pays it.
Another example is that of a businessman convicted of being involved in the management
of a business whilst bankrupt (Offender 3). He received a custodial sentence of 18 months
for the offence, of which he served half. He was out for 2 years and then received 5 years
in default of confiscation. The amount of order was £3.4m, of which £2m was confiscated
in assets. £1.4m was ordered against him. Confiscation proceedings have had a
devastating effect on him and his family.
“Everything I have ever worked for has been completely stripped and taken
away for an offence I didn’t even realise I was committing.”
47
HM Customs confiscated shares held on trust for the benefit of his children when they
come of age. SOCA have not sold the shares on the basis of public interest, because they
are rising in value.
“Those shares are still not sold now. Had they been sold, I would have been
out of here, because the shares are worth more than my fine, they have gone
up in value, year by year, month by month. Their “concilio” is quite happy
sitting there earning fees, SOCA are happy because they are going up and up
in value, more and more money, and I’m sitting here when I should be out. It’s
shocking what they get away with.”
The lack of fairness was identified by all offenders’ families. One family member
described her feelings in an email:
“I have found the whole system a complete joke…The money they deem illegal
was money he earnt years before the crime when he worked as a doorman until
they brought in licences. His home was bought legally, the mortgage paid legally,
there is no proof otherwise” (Family Member 3).
All but one interviewee in category B shared the view that the system in its current form
was unfair. The dissenting view belonged to Judge 2, who felt that the confiscation
system was fair and the main problem was the lack of proper enforcement.
48
One of the PSOs who had dealt with a number of offenders going through confiscation
proceedings, said:
“It’s imaginary, how are they going to be able to pay a projected figure. It’s
a little unrealistic to expect people to pay the amounts they are asking for,
because they have not physically got it” (PSO 1).
Judge 1 saw the root of the problem in the way that confiscation legislation is interpreted:
“People are beginning to realise it’s got completely out of control. It has become
very ritualistic and formalistic. Now, that I am retired, I can say for me it comes
down to a slavish adherence to the words of the section which are very widely
drafted without reference to what was the purpose of the legislation and I hope
one day that will change” (Judge 1).
Artificiality of the benefit figure
9 of 10 offenders considered that the prosecution’s manner of calculating the initial
benefit figure was absurd, bearing no resemblance to reality. (Offender 7 neither knew
what the benefit figure was, nor what that figure came to in his own case). This was also
the view of all the 5 people who were family members of offenders. This is the area on
which most of the offenders felt the strongest. During interviews with the offenders, in
most cases their demeanour was animated when discussing this. Some would throw their
49
hands in the air and others would shake their heads or suddenly lean forward and use
emotive words to describe the way in which the benefit figure was calculated.
“It was absolutely ridiculous how they’ve come up to that figure”(Offender 8).
“Yeah, my ex-girlfriend who was done for selling 3.5 grams, you know, small
amounts… and she got £2.3m benefit figure” (Offender 2).
One family member, whose father was going through confiscation following a conviction
for a drug offence, stated that the benefit figure of £3.3 million was “magically
calculated” from 4 packets of drugs, when only 1 had been found and recovered by
police:
“He was hit with £1.3 million order which was totally ridiculous and
shocking, of which £330,000 was realisable (savings, car, house)” (Family
Member 2).
The strong views expressed by the subjects in category A were echoed by most of the
PSOs, by all four lawyers interviewed and by two of the three judges.
50
“I think the main problem is a lack of realism about what money should be
recovered. The way the benefit figure is calculated is wholly unrealistic.”
(Lawyer 2)
Judge 1 expressed concern that the gross figure of the benefit no longer represented gross
received by an offender, but could include money an offender had never handled or even
been aware of. For example, in cases where the offender was a minor party to a large
conspiracy the total benefit of the conspiracy could be ordered against him, even if he had
received little or no benefit himself.
PSOs expressed surprise and disbelief at the way the benefit figures were calculated. PSO
2 gave as an example one of the offenders she was managing. He was convicted of benefit
fraud. The prosecuting authority had no information as to how often this individual was
working, what jobs he was doing or how much money he had made as a result, so they
estimated the benefit figure on the basis of averages. The resulting figure bore no
resemblance to reality.
The confiscation of legitimate property
Most offenders felt that it was wrong for the state to remove property, which had clearly
nothing to do with crime and had been obtained legitimately. Many thought that this
would leave them with nothing when they leave prison. Some described it as “theft” by
the state.
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“I’ve noticed through being in jail that a lot of people who have worked all
their lives, have earned money, legit, nothing have been proven, and then they
commit a crime later in life and then all that money they have done up to that
point can be taken off them. I just don’t see it… One little mistake and all the
life’s assets are taken from them. I think it’s wrong” (Offender 5).
All the families of offenders took the same view, expressing enormous surprise about the
fact that this was permissible by the law.
“My father is going through a confiscation order at present where he is having to
sell all his properties – these were all obtained years ago or inherited… How can
this be?” (Family Member 5)
Most of the PSOs felt that this was harsh and unjustified. The main problem identified by
them was in connection with the offender management. They considered that the removal
of legitimately acquired property would leave offenders in a very difficult financial
position during their licence period. Many referred to personal experiences in their
dealings with offenders who had had legitimate property confiscated. One PSO gave the
following example:
52
“I had a guy that had an order that took his inheritance money… That meant
that he was restricted to being in a local drug hostel…I would say [he was]quite
significantly at risk of relapsing, so it really affected the way he was expected
to rehabilitate himself…They had taken a legitimate source of funding and it
impacted on him quite significantly”(PSO 1).
This was an area in which most of the lawyers and judges held opposite views to the
views of the offenders, families of offenders and PSOs. They felt that if an offender had
benefited from his offence, then it was correct in principle that the equivalent amount
should be removed from his assets, if he had spent the benefit of his offence. Importantly,
many of the lawyers and judges qualified this by emphasising that this would only be a
fair approach if the benefit figure is calculated accurately in the first place to reflect the
true amount obtained by the offender.
Life style and the assumptions
All of the subjects in category A expressed surprise at the existence of these provisions
and did not understand how they worked. Some were not aware of these provisions. A
number of the offenders who had been through the life style provisions felt very strongly
about the fact that the burden was on them to prove that their assets and savings were not
from crime. They expressed feelings of helplessness in respect of being “stock in prison”
as they went through the confiscation process, and questioned how they were expected to
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go about proving things to a judge in those circumstances. One family member of an
offender puts his views in an email in this way:
“It was sickening to see how vastly inflated benefit assumptions were made
and how near impossible it was to explain every penny. The first time we had
seen guilty until proven innocent” (Family Member 2).
An elderly and disabled mother of an offender – Family Member 4 - who was interviewed
by telephone, explained that she was forced into going around to deal with her son’s
confiscation proceedings, as he himself was stock in prison. She explained that when her
son was arrested for his part in a conspiracy to import class A drugs, the drugs were all
taken by HM Customs’ officers, who had been watching the arrival of the cargo.
Although the drugs were recovered, their entire total street value was regarded as the
benefit figure. In addition, the benefit figure was further increased by the financial
investigator, who had looked at her son’s bank accounts for the past 6 years and just
added up all the credit payments. A loan from Prudential Building Society, which was
marked clearly as such on the bank statement, was also added, as well as regular
payments from a nursery her son was working for on a part-time basis. The value of her
own car given to her on disability allowance was also counted, because her son had been
seen using that car on a few occasions.
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Although no realisable assets were found, this offender was ordered to pay a six figure
sum as confiscation order on the basis of hidden assets. He is now serving an additional 4
years imprisonment in default.
Another poignant case is that of a 61 year old disabled man in a wheelchair, who was
convicted of a single episode of drug importation and received 5.5 years sentence. He was
a first-time offender. He made no money from this offence and the prosecution never
alleged that he did. £370,000 in realisable assets was ordered against him. It represented
the value of two properties, which were repossessed by banks some years before the
confiscation hearing, and which never belonged to the offender in the first place, but to
members of his family. The offender, in fact, was bankrupt at the time the properties were
purchased and remained bankrupt at the time of the interview.
The properties that the judge made the order on… That’s what I couldn’t
understand. He knew, he was told that both properties had been repossessed
by the bank… I never dreamed that I could do the prison sentence.
He was given an additional 3 years imprisonment in respect of this amount. While in
custody he had undergone four major operations – two heap replacements, a kneereplacement and a heart surgery to fit a pace-maker. The activation hearing of his default
sentence had been done by television link lasting only 5 minutes.
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Effect on the family
All of the offenders interviewed felt that there was an immediate impact on their families
from the confiscation order that they had received or were about to receive. Many stated
that their family members had to sell items and properties, or use their own personal
savings to help with the payment of the confiscation order.
One elderly man, being the step-father of an offender, explained by email that he and his
wife had decided to pay their savings towards their son’s confiscation, so he would avoid
serving an additional prison sentence. (Family Member 1)
Many of the offenders felt that the confiscation system had placed a lot of pressure on
their families and caused strained relations, in particular with their partners or spouses. In
some cases it led to a breakdown in the relationship.
The wife of Offender 3 has left him as a direct consequence of the confiscation
proceedings. He has no contact either with her or his children.
“my wife thinks I’m an out and out criminal, and everything I’ve ever done,
she thinks, because it’s all been confiscated, it’s been illegal. And it’s just not
the case.”
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One of the biggest concerns for offenders and their families as they went through
confiscation proceedings was losing the family home, particularly in cases where children
would be affected as well.
“My children still believe they are gonna return to their home and have their
bedrooms back. I have to sit back and watch this happening and it’s torture
and so unfair on my children.” (Family Member 3)
“It’s hard to sell assets from prison! So, it’s left to the innocent family to action
(major stress)” (Family Member 2).
The devastating way in which confiscation had impacted on the offenders’ personal lives
and their families was confirmed by the stories, which PSOs relayed in the interviews.
One PSO explained the following:
“Financial matters put a lot of pressure on people and families, people come
out and they are confronted with financial pressures. I know that it’s
something that occupies them almost totally… It’s very difficult with some of
the guys to talk about anything else, because they are so very worried about
the hearing, the next hearing, the next thing coming up. It almost becomes what
we tend to refer to as crisis management in that you’re constantly dealing with
someone who is in a state of flux, or stress or anxiety, so the actual offending
behaviour may not get down, because you’re dealing with someone who is
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struggling, and so you don’t get a lot done, because they are constantly furious or
anxious about it, unable to work properly, because they are struggling.” (PSO 1)
The lawyers and judges interviewed were not able to express any detailed views about
this point, other than a general acknowledgment that the impact of confiscation is no
doubt directly felt by family members.
Standards of legal representation
Most of the offenders felt strongly that their lawyers had not been very familiar with
confiscation law, because it was not the main part of their work and practice. One of the
offenders tried to explain his case on some of the figures to his barrister. He described
how he felt at the time:
“He was just not listening to me. I felt so frustrated, I wanted to punch him. I
felt so hopeless, he would not listen. I was not very impressed with my legal
team at all.” (Offender 8)
Offender 4 tried to explain to his barrister that he had no money. This is how he described
his experience:
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“…his whole attitude was I’ve got to pay them something… I haven’t got it…
He said: “If you’re not prepared to do a deal, I can’t deal with the case. I haven’t
got the time.”
Another interviewed offender described his thoughts about his legal team in this way:
“I don’t think there are many lawyers equipped on confiscation law. I think
lawyers, it’s more criminal side. There are not many lawyers who do
confiscation, they don’t know that side of the process. I don’t think they do it
at law school.” (Offender 1)
Offender 6 stated the following in respect of his legal representation:
“She told me not to pay while the appeal was going ahead. The court would see
sense that I’ve got no money, … the barrister disagreed with the solicitor. He
said: ‘You should have never told him not to pay. He should have been paying
something of it. They would have given him more credibility while the appeal was
going on.’ I didn’t even know I was going to prison until I was…I mean I couldn’t
believe it… couldn’t believe it. I was totally shocked when she said:‘You’re going
back to prison’ (Offender 6).
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Most of the offenders’ family members questioned by email were of the same view about
their lawyers.
“Totally non-existent and disgraceful, we had to get loans to get better non
legal aid” (Family Member 2).
The subjects in category B mostly confirmed that they also took the view that the
standards of legal representation were low in respect of confiscation proceedings.
The lawyers interviewed considered that there was a problem with standards of
representation, but felt that this was not an issue of incompetence, but a more complicated
issue. They explained that the main difficulty is that confiscation laws are very much civil
rather than criminal laws. There has been a lack of training for lawyers in an area of law,
which is constantly changing and becoming so complicated that it even confuses the
minds of appellate courts. In addition to this, confiscation proceedings are very badly paid
compared to the amount of complex work involved, and the courts are so busy that there
is serious reluctance to deal with confiscation matters.
On this issue the three judges interviewed felt that the standards of representation were
not very different to other types of cases, in that it was varied in each case.
Second punishment
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There was almost a uniform response on this issue from all the subjects in both categories
of participants in this research. The offenders without exception held strong views that
confiscation was a second punishment for the same offence. When reminded that they had
agreed in principle that the profits of an offender’s crime should be removed from him,
they gave various reasons for considering confiscation to be a second punishment. The
combination of three factors seemed to have shaped their views: (1) they had to serve
default prison sentences (2) for sums of money they had never got from crime and (3)
simply did not have. A few thought the system just wanted to give them more prison time,
because the courts believed that the current sentences for the main criminal offences were
insufficient.
“I feel I have been punched twice” (Offender 7).
“it’s worse than the actual jail sentence for the actual crime, because it’s ongoing and on-going” (Offender 2).
These feelings were shared by all members of offenders’ families participating in this
study. One family member described it in this way:
“so, for one crime they do their time in prison and then punished by a fine that
is 10 fold higher than any benefit gained” (Family Member 2).
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The view taken by the subjects in category A was strongly shared by all the subjects in
category B with one exception. Judge 2 felt that this was a continuing part of the sentence
and could not be regarded as a second punishment.
Judge 1 took the view that confiscation was undoubtedly a second form of punishment,
but only because the confiscation benefit figure was so artificially reached. If the benefit
figure was to be based on just the benefit that the offender had actually obtained from his
offence, then the demand for that benefit to be paid back would not be a punishment.
When asked whether confiscation orders were a second form of punishment, PSO 4 said:
“Yes, very much so, and it’s probably more traumatic than the actual original
sentence. It’s longer. It goes on for longer…’
Another PSO said:
“It seems to me that even though they can impose a prison sentence for not
paying it, they carry, on don’t they? And that payment itself doesn’t go away. So
the punitive element of the jail sentence they impose for you not paying that, after
you come out it doesn’t go away, do you see what I mean? So, it seems doubly,
triply punitive because you keep on counting.”(PSO 1)
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From this standpoint all PSOs felt that it was incomprehensible that no probation reports
were ever ordered prior to the activation of the default sentence. They explained that
Probation was there to draw the court’s attention to the personal circumstances of the
offenders in order to moderate the punishment. The system allowed personal
circumstances to influence the sentence for the main offence, no matter how serious it
was, but the same system was completely death to personal circumstances when it came
to imprisonment for failure to pay. PSO 1 said:
“The report itself has two questions about the impact on the person himself,
would they be able to cope with a custodial sentence? And then what is the
impact on those around them essentially, social and economic effects of the
custodial sentences – we should be asked the same thing [prior to the default
sentence]”.
PSO 4 concurs:
“I would like to see the probation service more involved in making this
decision… I think the law blankets, and with confiscation order you cannot
blanket… I think they’ve got to get rid of this blanket thing and I think we should
be involved, and we can go down personally and say: ‘Yeah we’ve read the report.
Yes, that is correct. I agree and I think you should go ahead with what you’re
trying to do’, or I disagree, because I now know this information about this person
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and the impact that this is going to have on them and on what they are going to
achieve.”
Deterrence of confiscation
On the issue of deterrence, almost all offenders took the view that confiscation orders
were not going to be a deterrent. Three main reasons for this view emerged from the
interviews.
The first reason was that people did not know enough about them, and the first time the
interviewees heard about confiscation proceedings being applied in their case was after
they had pleaded guilty or after conviction.
The businessman who was stripped of all his assets for an offence under Companies Act
provisions (Offender 3) had these feelings to share:
“I walked out of this jail four years ago. I thought that’s it. I’d been told we
were going to have a bit of a hearing about confiscation of criminal assets. I
thought I didn’t have any… I always thought that it was done to take away the
assets of drug dealers. I thought that’s not bad. Stops drug-dealers from
benefiting. But I had no comprehension it was like that.”
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The second reason was that an offender would find himself in a vicious cycle of
condemnation, because confiscation would leave the offender in a destitute position when
leaving prison. This would force him into further criminality in order to pay off the
confiscation order, which would still remain even after he had served his default period.
“And then when you get out, as well we still want the money off you, we are
going to hound you for the rest of your life and make your life as miserable as
we possibly can, because that is just telling someone that well you are going to
hound me anyway, so why not just go out and sell drugs and ruin my life even
more or potentially get the money and pay it off” (Offender 1).
“I think confiscation orders offer the defendants the excuse to turn back to crime
because it is the only way they can see off paying back the money. It isn't in
anyway a deterrent.” (Family Member 3)
The third reason expressed in the interviews was the feeling of bitterness and resentment
towards this degree of unfairness imposed in an arbitrary way, which left offenders
feeling frustrated at not being able to defend against it.
“So when I get out, I’ll just go on the doll just to stall them, what’s the point
of working or starting a business, they come and get your money”
(Offender 8).
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“I’m going to be released a very bitter desperate man, because I’m going to
have to rebuild my life and have contact with my children again, and I have
absolutely nothing, into a climate, which is very hard…” (Offender 3)
With the exception of Judge 2, all other participants in category B took the view that
confiscation was unlikely to have a deterrent quality and for essentially the same reasons.
A PSO explained this in the context of the case she had been managing:
“One guy couldn’t pay anything, didn’t have it, so in a way he was just saying:
‘Well, they are going to have to send me to prison, I can’t pay it’... I don’t know if
it particularly reduces it [reoffending]. It’s certainly a punitive thing, but I don’t
know if the effect is where it’s needed. It just seems like another episode of the
system battering a person again and again and again. I don’t know if that’s gonna
make them particularly compliant… It could make people very resistant against
the system.” (PSO 1).
Knowledge and understanding of confiscation
The greater majority of offenders interviewed expressed frustration at how little they
understood about confiscation. Many were still unsure as to how their own particular
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confiscation order figure was reached. Most of the offenders said that they had heard of
confiscation orders before they were arrested, but they did not understand or realised how
it worked. One offender stated:
“I didn’t even know what POCA was. I had never heard of one” (Offender 4).
From category B interviewees all the subjects, with one exception, held the view that
offenders did not understand how confiscation proceedings worked. The one exception
was Judge 2, who said that although he had not dealt with multi-handed confiscation
cases, but had regularly dealt with other confiscation cases, and believed that offenders
were very aware of how confiscation proceedings worked and would take steps to avoid
payment.
One of the lawyers explained the impression he had obtained about the knowledge of
offenders in respect of confiscation proceedings:
“What surprises me is the number of even intelligent professional criminals
who don’t really know how the system works, they don’t really understand
how confiscation operates, and their astonishment when you explain to them
the reach of confiscation proceedings. Then suddenly the penny drops, but
only after you have been through it with them several times” (Lawyer 2)
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Chapter 5 Discussion of findings
68
The primary focus of this research was to explore the experiences of the offenders and
their families (category A) – individuals personally affected by the confiscation regime. In
order to enhance the validity of this qualitative data the researcher used two types of
triangulation. This chapter will carry out comparative analysis of the qualitative and
quantitative data gathered from the primary subjects of this research (methodological
triangulation) and the qualitative data obtained from different sources (data triangulation).
The views of the PSOs, lawyers and judges (category B) are considered in order to obtain
independent perspectives on the same topic. References to published literature are made
to establish whether or not there is existing support for views expressed in this study.
The fairness of the confiscation regime
In respect of the overall fairness of the confiscation regime the greater majority of the
participants in both categories were of the view that the system is substantially unfair. The
main reason cited was to do with the inflated amounts the system sought to recover. These
views were in fact consistent with some of the findings in the report by Bullock (et al
2009), which showed that financial investigators hugely overestimate the value of the
available assets of offenders.
This is also confirmation of Levi and Osofsky’s (1995) finding that confiscation orders
end up being made in “over-optimistically large sums”, due to the reluctance of the police
financial investigators to assess the offender’s realisable assets as being substantially
lower than the benefit figure from his offence.
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Additionally the confiscation system appeared unfair to many of the lawyers and judges
because “Mr Bigs” of crime, who make vast sums of money from offences, are rarely
caught up in confiscation proceedings (Appendix B, Tables 5 and 6, Column 10). Some of
them expressed the view that the system targets low level offenders, who are hit with
confiscation orders based on wholly unrealistic figures.
The findings by Bullock (et al 2009) also revealed that most of the respondents in her
research felt that the confiscation regime is predominantly directed at minor criminals
with limited assets.
It would seem that the forecast of the Joint Inspectorate report (2004) that by targeting
low level offenders, the confiscation system could cause disruption to the work of the
higher level criminals was wrong. The £55.6 million recovered in 2006/2007 from
confiscation orders, reported by Bullock (et al, 2009) does not even begin to impact on the
eventual £15 billion annual proceeds of crime estimated by the Home Office (Joint
Inspectorate Report, 2010). It appears that the “Mr Big” of Levi and Osofsky (1995) is
still not being affected by the confiscation regime, but the “subsistence level offender”,
described by one of the judges interviewed by Bullock (et al 2009), is.
Artificiality of the benefit figure
Closely linked to the question of available assets is that of the benefit figure. Vast
majority of participants agreed that benefit figures tend to be inflated and artificial, to the
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point that they no longer resemble reality. The figures collected from the offenders and
offenders’ families supported this view.
When asked about the benefit figure in their respective cases, all but one offender and
offenders’ family members responded that it was calculated in an artificial way and had
nothing to do with reality. (Tables 1 and 3, column 2). The offender who did not provide
an answer (Tables 1 and 2, Row 7) neither knew his benefit figure, nor understood what it
was.
In order to assess the accuracy of this response, the offenders were asked to provide three
figures – the benefit figure (Tables 2 and 4, Column 3), the realisable assets (Tables 2 and
4, Column 4) and the amount of default for which they were serving their sentences
(Tables 2 and 4, Column 7).
If we look at the benefit figures in column 3 and the confiscation order, or realisable
assets figures in column 4, we will be able to see that in the majority of cases the benefit
figure is disproportionately higher than the confiscation order. 7 out of 11 cases where
both figures were reported show that the confiscation order comes to less than 15% of the
benefit figure. The proportions are: 0.21%, 1.24%, 3.45%, 9%, 10.6%, 10.94%, 12.36%.
These findings are suggestive of an unrealistic benefit figure, not founded on solid
evidence.
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If we are to assume that the rest of the money has been hidden by the offenders, two
further discrepancies need to be explained.
First, most of the offences in the two tables fall into the category of lifestyle offences
(Tables 2 and 4, Column 2), which means that hidden assets have been included as
realisable assets. It is impossible to know what exactly has been hidden, but the
prosecution here are given free reign to make any assumptions with regards to the
offenders’ income or lifestyle. So, anything remotely possible is usually included in the
hidden assets. The onus is on the offenders to prove otherwise.
And second, amounts for which the defendants were serving their default sentences were
often insignificant compared to the benefit figure. For example:
Offender 5
– Benefit Figure 1.7m, Amount of Default – 21,000.
Offender 8
– Benefit Figure 2.9 m, Amount of Default – 100,000
Offender 10
– Benefit Figure 5m, Amount of Default – 450,000
Common sense dictates that these offenders would rather pay these sums and walk away,
than serve a prison sentence for something, which will not even make a dent in their vast
fortunes.
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These figures taken in isolation cannot provide definitive proof that benefit figures are
grossly inflated, but they certainly provide some support for this view, and taken together
with information from other sources they make a strong case for the suggestion that the
benefit figure is not calculated with solid evidence in mind.
One of the Financial Investigators interviewed in the research by Bullock (et al 2009) said
this:
“We can make, as a Financial Investigator, a vast amount of assumptions, and
we want to get a benefit figure over and above what the realisable assets are,
obviously…so it’s very rare the actual benefit figure that we put down ever
represents the true value of the order” (Bullock et al 2009 p.14).
Further corroboration for this suggestion is the finding by Bullock (et al 2009) that over
95% of what the Financial Investigators had stated to be the benefit figure was not
recovered after confiscation orders were made. This concurs with the figures in Tables 2
and 4, Column 9. However the researcher is mindful of the fact that his sample consisted
mostly of offenders who were in default of their sentences, since eight of ten offenders
were interviewed in prison.
The confiscation of legitimate property
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One of the issues being considered in this research for the purposes of understanding the
impact of confiscation orders was the issue of legitimate property being removed by
confiscation. All the offenders and families of offenders who had answered this question,
and most of the PSOs considered this to be unacceptable and excessive (Tables 1 and 3,
Column 3, Table 7, Column 5).
Whereas all judges and two of four lawyers felt that it was sufficiently fair to remove
legitimate property in order to pay for the confiscation order, if the benefit figure was
accurately assessed (Tables 5 and 6, Column 5).
Life style and the assumptions
Most lawyers and judges felt that this was unfair in its current form since the benefit
figures were vastly overestimated. However, all judges and two lawyers thought it could
be fair in principle. (Table 5 Column 7, Table 6, Column 6).
The offenders and families of offenders thought that life style assumptions produced very
unfair and severe results (Table 1 and 2, Column 3). This view was shared by the majority
of the PSOs.
Ulph (2010) points out that this is particularly true for first time offenders. They could be
caught up in the life style assumptions by virtue of one isolated involvement in a relevant
offence, which results in their savings being stripped from them and their lives ruined.
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Offender 3 would be a good example to demonstrate this point. He is a 53 year old
businessman. This was his first offence, convicted of a relatively minor offence under the
Companies Act. As a result of his confiscation order he was stripped of all of his life’s
assets and is now serving a further 5 year term for the default amount.
Effect on the family
The offenders and the families of offenders who participated in this study all reported that
there was a direct impact on the immediate family in each case. It is understandable that
in any criminal proceedings the family of the defendant are always affected in one way or
another, as indicated by one of the judges interviewed.
However, the difference here, as suggested in the stories explained by the offenders, is
that the impact is a direct financial impact, which affects the livelihood of the family and
the survival of the family home. In this study 5 of 14 participants in category A reported
divorce/separation as a direct result of the pressure from the confiscation proceedings.
(Tables 2 and 4, Column 11). In 3 cases the family home was affected (Tables 2 and 4,
Column 10). In one case the offenders’ partner had to leave the family home with their
three children (Table 4, Row 3).
Bullock (et al 2009) reported that the family home is often the most valuable asset of the
offenders and this is a main target in the enforcement of confiscation orders. For this
reason many partners and spouses of offenders may attempt to initiate separation or
divorce in the hope of rescuing the family home. This is an area where further research is
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needed to establish if separation or divorce rates are higher in confiscation related cases
compared to other criminal proceedings.
What emerged from the interviews and email exchanges is that family members often end
up financially contributing towards the confiscation order (Tables 2 and 4, Column 8). A
point, which was repeatedly made by the offenders, families of offenders and PSOs was
the enormous difficulties faced by offenders trying to either comply with the confiscation
order or discharge the burden of proof in confiscation proceedings, when they were “stock
in prison”. As a result family members were relied upon to assist and to join up their
efforts with the defence lawyers of the offenders to prepare the defence case for the
confiscation proceedings.
Standards of legal representation
The interviews with the offenders and the email exchanges with families of offenders
revealed a deep sense of dissatisfaction with the standards of legal representation that was
provided for them (Tables 1 and 3, Column 7). Many considered that this had
disadvantaged them and exacerbated the impact of the confiscation orders. There is
consistent support for this view in previous reports and studies relating to proceeds of
crime (Levi & Osofsky 1995; Joint Inspectorate report 2010; Bullock et al 2009).
Second punishment
Taking into account the above findings in respect of the overall impact of confiscation
orders on offenders and their families, the imposition of the confiscation order on any
view has the clear appearance of punitiveness. The circle of punishment, which seemed to
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lack finality for most of the offenders and families of offenders, made them feel trapped.
It did not allow for a fresh start even after serving the initial sentence and the additional
default period. The hope of bettering themselves and attempting to provide for their
family was seriously eroded. Many were concerned that even if they did settle down with
a job, their earnings and any income they generated would be affected by the confiscation
order, which was never fairly assessed in the first place. It is not surprising that all
offenders and their family members answered with resounding ‘yes’ to the question of
second punishment. (Tables 1 and 3, Column 5)
The quantitative data appear to support the qualitative input. In Table 2 two particular
columns can be of interest – the amount of confiscation order, column 4, and the amount
of the order paid, column 9. The latter column also contains the proportion of the order
paid. If we compare the figures in the two columns, we will see that most of orders
haven’t been paid at all, even where sums ordered were moderate, such as £1000, £9500,
£21000, which is suggestive of people who have no means. In this context confiscation
orders do appear to be just another prison sentence.
Many of the offenders maintained that they had not benefited from the offence at all
(Tables 2 and 4, Column 5). Some of the offenders stated that their benefit was a very
small fraction of the benefit figure the court had held them liable for. A few of the
offenders were not able to say exactly how much their benefit was, but had no doubt that
it was not anything like the sort of figures they were being asked to pay in confiscation.
This appeared to have created a sense of frustration and deep resentment towards the
system amongst the offenders who were interviewed. These feelings were to a large
77
extent echoed by families of offenders affected by confiscation. There is strong empirical
evidence to suggest that such feelings can make the system lose legitimacy and lead to
non-compliance (Tyler, 2003).
The offender’s sense of grievance was appreciated by the PSOs, lawyers and 2 of the
judges interviewed (Table 5, Column 8, Table 6, Column 7, Table 7, Column 7). Judging
from the above responses it seems that what actually pushes the confiscation order into
becoming a punitive measure is that the system tries to remove from the offender money
and assets far beyond and above what he actually made from the offence.
Given the sort of results that have emerged from the narratives of the offenders and
families of offenders and largely supported by PSOs, lawyers and judges, it is difficult to
see how the assertion by the Joint Inspectorate Report (2010) that the removal of large
sums of cash from the offenders into the public purse is done in a just manner under the
POCA regime, can be a correct description of the confiscation regime.
Deterrence of confiscation
On the issue of deterrence most participants agreed that confiscation orders were not
going to be a deterrent. (Tables 1 and 3, Column 6, Table 5, Column 9, Table 6, Column
8, Table 7, Column 8) The views from this study are consistent with the views of the
78
enforcement agencies considered in previous studies (Levi & Osofsky 1995; Bullock et al
2009; Bullock 2010).
One of the reasons was that people did not know enough about them. These findings were
echoed by those in the study by Bullock (et al, 2009) who found similar views within the
enforcement agencies.
Two further reasons were given by the participants in this study. First, that the vicious
cycle of condemnation locking offenders in is more likely to make them resentful towards
the system rather than compliant with it. Second, that confiscation orders leave people
destitute, which is likely to force them into further criminality rather than deter from it.
Conclusions
Three decades ago the Hodgson report recommended the introduction of confiscation
laws. One of its main recommendations was that the law should aim to achieve the
objective of removing the proceeds of crime by depriving the offender of his net profits.
79
The legislator chose instead to hold offenders liable for the entire of the overall gross
financial benefit of the offence. The impact that this approach has had on offenders is
disclosed in the findings of this study, which suggests that the current confiscation regime
is substantially unfair and produces results clearly disproportionate with devastating
consequences.
The results identify that the root of the problem is the wholly unrealistic way in which the
confiscation proceedings assess the financial benefit of the offence. Once this benefit
figure is worked out by the court, there begins an uncompromising and ruthless process
with virtually unlimited statutory powers designed to remove this amount from the
offender. It is at this latter stage where the full impact of the confiscation order is felt by
the offenders and their families. It is also these latter stages of the confiscation
proceedings, which have not been considered in detail by researchers and practitioners.
Clearly the current confiscation system claims monetary payment from the offender far
beyond and above what he has made from his offence. No matter whether the ECJ brands
these proceedings criminal or not, the practical effect is that they are punitive and cannot
be anything but a second form of punishment for the same offence.
Deterrence has been used as justification for this severe regime. However, it can be seen
that 25 years on from the introduction of confiscation laws their deterrent quality is as
much doubted now as it was by Levi and Osofsky (1995) 18 years ago. Indeed, the results
of this limited study show that the current confiscation regime could easily lead to further
80
criminal conduct by those affected by it because of the desperate financial situation that it
leaves them in.
If the essence of the legislation in this area is to remove from offenders their proceeds of
crime, the statistics show that very little progress has been made in this respect. A costbenefit analysis in relation to confiscation orders would assist in determining whether the
tax payers’ money is being spent efficiently to achieve these objectives. However, at
present it appears almost impossible to carry out such analysis due to the lack or absence
of statistical information in relation to key aspects of the confiscation regime. During this
research it was discovered that we do not even know how many people we are currently
holding in our prisons for non-payment of confiscation.
This research was short in time and scale and consequently of limited generalizability.
More detailed research with a greater sample and statistical significance is needed to
establish whether the current impact of confiscation orders is disproportionate and
whether imprisonment is effective in actual recovery of the amounts ordered in
confiscation.
Given the fact that over 4000 confiscation orders are made each year, the amount of
confusion and controversy that confiscation laws have generated so far, which have
resulted in a number appeals to the House of Lords and the Supreme Court on the same
issues, the severe impact that confiscation has on offenders and their families, and
considering the Home Office’s aspirations to tackle the £15 billion a year proceeds of
81
crime, it is perhaps urgent now to have another Hodgson type inquiry to report on the
ways which could improve the current confiscation regime, so that it would be more
effective and just in removing the proceeds of crime from offenders.
Bibliography
Alldridge, P. (2011). Limits of Confiscation. Criminal Law Review , 827.
Alldridge, P. (2003). Money Laundering Law. Oxford: Hart.
Ashworth, A. J. (2001). Human Rights Round-Up: burdens of proof and confiscation
orders. Archbold News (7), 5-6.
Ashworth, A. J. (2009). Human Rights: confiscation orders - burden on defendant to
prove that reaslisable property less than benefit. Criminal Law Review (3), 200-202.
82
Bachman, R., & Schutt, R. K. (2007). The Practice of Research in Criminology and
Criminal Justice (3rd Edition ed.). Sage Publications.
Beccaria, C. (1778). Crimes and Punishments. Edinburgh: Printed for Alexander
Donaldson.
Becker, G. S. (1968). Crime and Punishment: An economic approach. Journal of
Political Economy (76), 169.
Blackstone, W. (1768). Commentaries on the laws of England Book the fourth. Oxford:
Oxford University Press.
Bottoms, A. (1995). The Philiosophy and Politics of Punishment and Sentencing. In C.
Clarkson, & R. Morgan, The Politics of Sentencing Reform. Oxford: Clarendon Press.
Bowles, R., Faure, M., & Garoupa, N. (2005). Forfeiture of illegal gain: An economic
perspective. Oxford Journal of Legal Studies , 25 (2), 284.
Bullock, K. (2010). Enforcing Financial Penalties: The Case of Confiscation Orders.
The Howard Journal , 49 (4), 328 - 339.
Bullock, K., Mann, D., Street, R., & Coxon, C. (2009). Examining Attrition in
Confiscating the Proceeds of Crime. Home Office. Home Office.
Cohen, S. (1994). Social control and politics of reconstruction. In D. Nelken, The
Futures of Criminology. London: Sage.
Creswell, J. W. (1994). Research Design: Qualitative and quantitative approaches. Sage
Publications.
Cullen, F. T., & Agnew, R. (2006). Criminological Theory past to present (3rd Edition
ed.). Roxbury Publishing Company.
Cullen, F., Pratt, T., Miceli, S., & Moon, M. (2002). Dangerous Liaison? Rational Choice
Theory as the basis for correctional intervention. In A. Piquero, & S. Tibbetts,
Rational choice and criminal behaviour (pp. 279 - 296). New York: Routledge.
Denzin, N. K. (1988). The Research Act: A theoretical Introduction to Sociologocal
Methods (3rd edition ed.). New Jersey: Prentice Hall.
Fortson, R. (2011). The Modern Notion of "Benefit". Proceeds of Crime Review (5).
Hansard. (2001). Proceeds of Crime Bill. House of Commons, Standing Committee B
(pt 6). London: Hansard.
Hirsch, A. V., Bottoms, A. E., Burney, E., & Wikstrom, P. O. (1999). Criminal Deterrence
and sentence severity: An analysis of recent research. Hart Publishing.
Hodgson Committee. (1984). Profits of Crime and Their Recovery (Cambridge Studies
in Criminology LII ed.). (S. L. Radzinowicz, Ed.) London: Heinemann.
Home Office circular 27/2005. (2005). Revised National Best Practice Guide to
Confiscation Order Enforcement. (H. Office, Producer) Retrieved from Home Office:
83
www. homeoffice.gov.uk/about-us/corporate-publication-strategy/home-officecirculars-2005/027-2005//027
Joint Inspectorate Report. (2010). Joint Thematic Review of Asset Recovery: Restriant
And Confiscation casework. HMCPSI (Her Majesty's Crown Prosecution Service;
HMICA (Her Majesty's Inspectorate of Court Administration; HMIC (Her Majesty's
Inspectorate of Constabulary) , Criminal Justice Joint Inspection.
Joint Inspectorate Report. (2004). Payback Time: Joint Review of Asset Recovery Since
The Proceeds of Crime Act 2002. HMIC, HMCPSI, MCSI.
King, R. D., & Wincup, E. (2008). Doing research on Crime and Justice (2nd ed.).
Oxford University Press.
Lawrence, I. (2008). Draconian and Manifestly Unjust: how the confiscation regime
has developed. Amicus Curiae (76).
Levi, M., & Osofsky, L. (1995). Investigating, Seizing and Confiscating the Proceeds of
Crime. Police Research Group. London: Home Office Police Research Group.
Lincolnshire Police Authority. (2009). Criminal Asset Recovery 2008/2009. report,
Financial and Strategy Committee.
Maguire, M. (2008). Researching "Street Criminals" in the field: a neglected art? In R.
D. King, & E. Wincup, Doing Research on Crime and Justice (p. 276). Oxford University
Press.
Miles, M., & Huberman, A. (1994). Qualitative Data Analysis: An Expanded Source
Book (2nd edition ed.). Thousand Oaks california: Sahe.
Ministry of Justice Statistics Bulletin. (2011). justice.gov.uk. Retrieved 2012, from
Ministry of Justice web page:
http://www.justice.gov.uk/downloads/statistics/mojstats/cjs-stats/cjs-statsbulletin-sept2010.pdf
Ministry of Justice Statistics Bulletin. (2010). Provisional Quarterly Criminal Justice
System Preformance Information - December 2009. Ministry of Justice.
Mitchell, Taylor, & Talbot. (1992). Confiscation and Proceeds of Crime (1st edition
ed.). Sweet and Maxwell.
O'Malley, P. (1999). Volatile and Contradictory Punishment, . Theoratical Criminology
, 3 (2), 175-196.
O'Neill, S. (2009, October 5). Revenue's cash rewards and confiscation targets
"skewing justice". (T. C. editor, Ed.) Times newspaper .
Palys, T. (2008). Purposive Sampling. In L. M. Given, The Sage Encyclopedia of
Qualitative Research Methods (2nd edition ed., p. 697). Sage.
Paternoster, R., & Bachman, R. (2001). Classical and Neuve Classical Schools of
Criminology: Deterrence, Rational Choice, and Situational Theories of Crime. In R.
84
Paternoster, & R. Bachman, Explaining Criminals and Crime (pp. 11-22). Roxbury
Publishing.
Performance and Innovation Unit Report. (2000). Recovering the Proceeds of Crime.
Cabinet Office. London: Cabinet Office.
Perry, D., & Ailes, V. (2010). Proceeds of Crime and the European Convention on
Human Rights. Proceeds of Crime Review (4), 6.
Pogarsky, G., & Piquero, A. (2003). Can punishment encourage offending?
Investigating the "Resetting Effect". Journal of research in crime and delinquency (40),
95-120.
Pratt, T., Cullen, F., Blevins, K., Daigle, L., & Madensen, T. (2006). The Empirical Status
of Deterrence Theory: A meta analysis. In F. Cullen, J. Wright, & K. Blevins, Taking
Stock: The status of criminological theory- advances in criminological theory (Vol. 15).
Transaction Publishers.
Robson, C. (2002). Real World Research. Blackwell Publishing.
Rubin, H. J., & Rubin, I. S. (1995). Qualitative Interviewing: The Art of Hearing Data.
Sage Publications.
Sherman, L., Gottfredson, D., MacKenzie, D., Eck, J., Reuter, P., & Bushway, S. (1998).
Preventing crime: What works, What doesn't, What's promising. .
www.preventingcrime.org. Retrieved from www.preventingcrime.org
Sproat, P. (2009). To what extent is the UK's anti-money laundering and asset
recovery regime used against organised crime? Journal of Money Laundering Control .
Tyler, T. (2003). Procedural Justice, Legitimacy and the Effective Rule of Law. . In M.
Tonry, Crime and Justice: A Review of Research. Chicago: University of Chicago Press.
Ulph, J. (2010). Confiscation Orders, Human Rights and Penal Measures. Law
Quarterly Review (126), 251-278.
Vervaele, J. (2005). The Transnational ne bis in idem principle in the EU Mutual
recognition and equivalent protection of human rights. Utrecht Law Review , 1 (2).
Wasik, M. (1984). The Hodgson Committe Report on the profits of crime and their
recovery. Criminal Law Review , 708.
Young, J. (2003). Winning the fight against crime? New Labour, populism and lost
opportunities. In R. Matthews, & J. Young, The New Politics of Crime and Punishment.
Cullompton: Willan Publishing.
85
Appendices
A.
Interview protocol
B.
Tables 1 – 7 summary of answers
C.
Advert in “Inside Time”
D.
Questions tabled at the House of Lords
86
Appendix A
Interview protocol
For offenders interviewed in prison, for the offender questioned by email exchanges
and for the offender interviewed by telephone
*NB:
The same questions, which were asked from all interviewees are in bold
writing. The questions in italic have appropriate alteration made to the words
to reflect the difference in the group being interviewed.
87
Introduction – purpose of the interview
Ethical issues – participation is voluntary – option to withdraw at any stage –
consent for audio recording – confidentiality. In the case of prisoners - this research
has no powers to affect any change in their position.
1.
2.
Background
-
What was the offence(s) of which you were convicted and the
original sentence?
-
How much was the confiscation order figure?
-
How many people were involved in your case?
-
How many defendants were there in the case?
-
Were all the defendants ordered to pay equal amounts?
-
Was your case regarded as a criminal life style case?
-
Was your case regarded as involving hidden assets?
-
How long is the default sentence?
Perhaps you could tell me what you felt was fair and what was unfair
about the process?
Are you satisfied with the current state of the law on confiscation? [asked from
families of offenders, Probation Service Officers, lawyers and Judges]
3.
Before you were arrested for this [offence] did you know there was
such a thing as confiscation proceedings in the criminal courts?
-
If yes - what did you understand confiscation proceedings to
mean?
-
Did you know legitimately obtained property could be confiscated
to make up for the sum of the confiscation order?
Judging from your experience do you think offenders know about
confiscation and how it works before committing the offence? [asked from
families of offenders, Probation Service Officers, lawyers and Judges].
88
4.
After your arrest did anyone advise you about the possibility of
confiscation proceedings?
5.
How do you feel about the way that your lawyer dealt with your
confiscation case?
What do you think about the standard of legal representation of the
defendants [your family member] at the time of confiscation proceedings?
[asked from families of offenders, Probation Service Officers, lawyers and
Judges]
6.
What did you think about the way the confiscation order decision was
reached by the court?
7.
Did you understand how the judge reached the confiscation figure?
What do you think is the level of understanding of offenders about the way that
the confiscation figure is worked out? [asked from families of offenders,
Probation Service Officers, lawyers and Judges].
8.
What do you think about legitimately obtained property being taken
to pay for the confiscation order?
Do you think its right that legitimately acquired property can be taken to
pay for the confiscation order? [asked from families of offenders, Probation
Service Officers, lawyers and Judges]
9.
How did you feel after being ordered to pay confiscation?
10.
Did you pay any part of the confiscation order?
11.
Has any of your legitimately obtained property been taken for confiscation?
12.
Have your family been affected by the confiscation order?
Do you think confiscation orders can impact on the offender’s family? [asked
from families of offenders, Probation Service Officers, lawyers and Judges].
13.
Have your family paid towards your confiscation order?
89
14.
How does your partner or spouse feel about your confiscation order ? Has
this affected your children (if you have any)?
15.
Would you say the confiscation order is going to affect how you are going
to live when you leave prison (or after you left prison)? please explain how ?
16.
Do you think confiscation orders will deter people from reoffending? [asked from families of offenders, Probation Service Officers,
lawyers and Judges].
17.
When you first found out that there was going to be confiscation
proceedings in your case, what was your biggest worry?
18.
Do you consider the confiscation proceedings to be another
“sentence”? [asked from families of offenders, Probation Service Officers,
lawyers and Judges].
19.
What would you like to see change about confiscation orders if
anything? [asked from families of offenders, Probation Service Officers,
lawyers and Judges].
90
Appendix B
Table 1. OFFENDERS – VIEWS ON CONFISCATION
1
Understanding of
confiscation
regime prior to
offence
2
Artificiality of
the benefit
figure
3
Is confiscation
of legitimate
property fair?
4
Are lifestyle
assumptions fair?
5
Is confiscation
Orders a 2nd
punishment?
6
Do confiscation
orders have
deterrent effect?
1
NO
YES
NO
NO
YES
NO
7
Satisfaction with
legal
representation at
confiscation
hearing
NO
2
NO
YES
NO
NO
YES
YES
NO
3
NO
YES
NO
NO
YES
NO
YES
4
NO
YES
N.A.
NO
YES
NO
NO
5
NO
YES
NO
NO
YES
NO
NO
6
NO
YES
N.A.
NO
YES
YES
NO
7
NO
N.A.
NO
NO
YES
NO
Neutral
8
NO
YES
NO
NO
YES
NO
NO
9*
NO
YES
NO
N.A.
N.A.
NO
NO
10*
NO
YES
NO
NO
YES
NO
NO
Offender
N.A. – there was no clear answer
* - were not in custody. No.9 was done by email exchange. No.10 was done by telephone interview
91
Table 2. OFFENDERS – BACKGROUND
1
2
3
4
5
6
7
8
9
10
11
Offender
Offence type
Lifestyle
offence £
Benefit
figure £
Confiscation
order and
proportion
of benefit
Actual
benefit £
Default
sentence
activated
Amount of
default £
Notes on confiscation
Amount and
proportion
paid £
Legitimate
property
confiscated
Family
breakdown
1
Drugs Class
A
YES
85,000
9000
5000
5 months
9500
the car confiscation was ordered against was sold
some years prior to confiscation proceedings
0
NO
NO
unknown
0
47,000
This Offender had 2 confiscation orders
33,000
Charge put
on property
NO
NO
YES
YES
YES
NO
6%
Charge on
repossessed
property
0
NO
NO
0
NO
NO
10.6%
2A
Drugs Class
A
YES
200,000
80,000
40%
2B
Drugs Class
A
YES
2.3 m
4900
0.21%
40%
unknown
0
0
4900
100%
3
4
Managing
business
whilst
bankrupt
YES
Drugs Class
A
YES
27.5 m
3.4 m
Unable to
work out
5 years
1.4 m
12.36%
1m
370,000
0
3 years
350,000
confiscation ordered against shares held by
Customs, but not cashed, because they were
rising in value. The price of the shares would
cover the default figure; property which did not
belong to defendant.
2m
confiscation ordered against property which was
repossessed years before confiscation hearing
20,000
37%
5
Drugs Class
A
YES
1.7 m
21,000
0
12 months
21,000
59%
1.24%
6
Benefit fraud
YES
unknown
56,000
0
18 months
56,000
defendant had no assets, benefit payments were
made to the landlord
7
Drugs Class
B
NO
unknown
1000
1000
28 days
1000
0
NO
YES
8
Drugs Class
A
YES
2.9 m
100,000
unknown
6 months
100,000
0
NO
NO
0
NO
NO
0
NO
YES
3.45%
9*
Benefit Fraud
N.A.
N.A.
N.A.
0
N.A.
N.A.
Defendant had no assets, benefit payments were
made to landlord
10*
Money
Laundering
YES
5m
450,000
9%
0
4 years
450,000
N.A. – there was no clear answer
92
Table 3. OFFENDERS’ FAMILIES – VIEWS ON CONFISCATION
Offender’s
family
member
1
Understanding of
confiscation regime prior
to offence
2
Artificiality of the
benefit figure
3
Is confiscation of
legitimate property fair?
4
Are lifestyle assumptions
fair?
5
Is confiscation order a
2nd punishment?
6
Do confiscation orders
have deterrent effect?
7
Satisfaction with legal
representation at
confiscation hearing
1
NO
YES
N.A.
N.A.
NO
N.A.
N.A.
NO
YES
NO
NO
YES
NO
NO
NO
YES
NO
NO
YES
NO
NO
NO
YES
NO
NO
YES
NO
NO
stepfather
2
Son
3
Partner
4
Mother
N.A. – There was no clear answer
93
Table 4. OFFENDERS’ FAMILIES – BACKGROUND
1
2
3
4
5
6
7
8
9
10
11
Offender’s
Family
Member
Offence type
Lifestyle
offence
Benefit
figure
Confiscation
order and
proportion
of benefit
figure
Actual
benefit
Default
Sentence
Amount of
default
Notes on confiscation
Amount and
proportion
of order
paid
Legitimate
property
confiscated
Family
breakdown
1
Drugs
YES
150,000
16,410
Unknown
9 months,
not yet
served
Not yet
decided
Mother and stepfather are prepared to pay the
confiscation order
Not yet paid
YES –
holiday
money paid
towards it
NO
0
3 years,
not yet
served
119,000
211,000
YES –
offender’s
share in the
house
stepfather
2
son
3
Class A
10.94%
Drugs Class
A, Money
Laundering
YES
1.3 m
330,000
N.A.
YES
N.A.
50,000
N.A.
N.A.
N.A.
Drugs
YES
574,000
383,000
0
4 years
36,000
25.4%
64%
N.A.
YES – family
home is the
subject of
confiscation
order
N.A.
36,000
YES –
mother’s
disability car
given to her
by the social
security was
confiscated
YES – girlfriend
left him
partner
4
Class A
66.72%
mother
Loan from the Prudential BS was counted as
hidden assets, as well as monthly payments of
wages from the nursery the offender was
legitimately working for.
Mother had to borrow on the credit cards to pay
for an expert accountant to help.
N.A. – There was no clear answer
94
9.4%
Table 5. JUDGES
Judge
1
Is
confiscation
law
satisfactory?
2
Should
benefit
be the
gross
figure
NO
3
Should the
debt be
extinguished
?
NO
4
Artificiality
of the benefit
figure
5
Is confiscation
of legitimate
property fair?
6
Wider
discretion
for Judges?
7
Are
lifestyle
assumption
fair?
8
Is
confiscation
second
punishment ?
YES
YES
YES
YES – but
problem a man
who’s
pleaded not
guilty is
not going
to be
believed
YES
undoubtedly,
because he
has to pay
more than
what he
gained
9
Do
confiscation
orders have
deterrent
effect?
DON’T
KNOW,
perhaps not,
needs more
research
10
Were you
happy with
standards of
legal
representation?
YES
11
Is Mr Big
caught?
12
Should
there be
prison for
default?
NO
DON’T
KNOW –
but no
point in
spending
£45,000 a
year on a
prisoner
when you
never get
the money
13
Is it right to pass
default sentences
when the original
sentence was noncustodial
YES – if the benefit
figure and realisable
assets are worked
out correctly. You
shouldn’t send to
prison those who
don’t have the
money
1
NO –
Wide
interpretatio
n of the law,
which is too
general as it
is. Gross
benefit –
goes beyond
simple gross
figure. Lack
of any
discretion
2
NO Doesn’t
achieve
objectives
They are not
enforced
properly
YES
Was not
asked
Not always
artificial,
Can
apportion
benefit.
YES
YES
YES
NO – they are
additional
powers when
sentencing
NO
YES
DON’T
KNOW
YES
YES – but in some
cases it would be
inappropriate to
make a confiscation
order
3
NO –
They work
in some
cases, but
the problem
is the benefit
figure
NO
YES
YES
YES
YES use
common
sense
YES –
burden of
proof has
to be on
defendant,
otherwise it
would be
unworkable
YES
NO
NO
NO
YES
Otherwise
no one will
pay
NO
95
Table 6. Lawyers
1
Is
confiscation
law
satisfactory?
2
Should it be
gross?
3
Should the
debt be
extinguished
if default
sentence
served?
1
NO –
artificial
benefit
figure
NO
2
NO –
wholly
unrealistic
figure
NO – but
you
shouldn’t
take into
account
every little
bit of
expense
NO – that is
not what was
intended
3
NO –
nothing to
do with
actual gains
NO –in all
aspects,
including
the ultimate
goal, since
the benefit
figure does
not
represents
criminal
profits
Lawyer
4
4
Artificiality
of the benefit
figure
5
Is confiscation
of legitimate
property fair?
6
Are lifestyle
assumptions
fair?
7
Is
confiscation
order a
second
punishment ?
8
Do
confiscation
orders have
deterrent
effect?
9
Are standards
of legal
representation
good?
10
Is Mr
Big
ever
caught
?
11
Should
there be
prison for
default?
YES
Have not
thought about
this
YES – if you
get the
benefit figure
right
YES
NO
NO – no
interest
because of
low
remuneration
NO
YES
YES
YES
YES
YES – but
only if we get
the benefit
figure right
YES
NO
NO – lack of
training,
complex law,
little pay
NO
NO
NO
YES
YES
YES
NO
YES
NO
NO – badly
paid
NO
NO –
civil
action.
Prison
doesn’t
achieve
the
ultimate
goal
NO
NO – If you
can estimate
gross figure
you can
estimate net
figure
YES
YES
NO
NO – you can
argue
practicalities
of imposing
the burden on
the
prosecution,
but you can
never argue
it’s fair to
reverse it
YES
NO
NO – badly
paid for a lot
of difficult
work
NO
NO
NO
96
12
Is it right to
pass default
sentences
when the
original
sentence was
noncustodial
NO
NO
Table 7. PROBATION SERVICES OFFICERS (PSOs)
1
YES
2
Should the
debt be
extinguished
by the
prison
sentence?
Probably
2
3
YES
YES
NO
YES
NO
NO
YES
NO – on the
contrary, it
can make
people
resistant
against the
system
YES
YES
YES
NO
NO
NO
YES
YES
4
YES
NO – but it
should
depend on
the case
NO
DON’T
KNOW
DON’T
KNOW
YES – but
only in
principle
YES
NO
5
YES – but
wrong
people are
caught
YES
NO – if we
are dealing
with Mr Big
NO
YES
NO
NO
YES
YES – but
not if they’re
sophisticated
and have
taken their
money
elsewhere
YES – at
low level
NO
NO
YES
YES
NO
YES
YES
NO
YES
YES
YES
Depends on
circumstances
DON’T
KNOW
DON’T
KNOW
Depends on
the impact on
other people
D.N
YES
YES
YES
DON’T
KNOW
YES
PSO
6
7
1
Overall is
it a good
idea?
3
Should
benefit be
gross figure?
4
Artificiality
of the
benefit
figure
5
Is confiscation
of legitimate
property fair?
6
Are lifestyle
assumptions
fair?
7
Is
confiscation
order a
second
punishment
8
Do
confiscation
orders have
deterrent
effect?
9
Should there
be
imprisonment
for default?
NO
YES
NO
NO – it
seems very
illogical,
because we
work on
evidence
YES
N.A. – there was no clear answer
97
Depends on
the case
10
Is it right to
pass default
sentences if
original
sentence was
non-custodial?
DON’T
KNOW
11
Should
probation be
involved
before the
default
sentence?
YES
YES
N.A.
YES
Depends on
evidence
DON’T
KNOW
YES
YES
NO
YES
YES
NO
YES
Appendix C
16/7/2012 Name - email address @cam.ac.uk
Hello to anyone who has had a Confiscation Order made against them. I am a defence
barrister and I am Conducting a research at the University of Cambridge Institute of
Criminology. My study is about the impact of Confiscation Orders on defendants and
their families. I am trying to see if Confiscation Orders are actually removing property
which has been obtained through crime or are they removing legitimately bought
property. I am also looking at the fairness of Confiscation Orders and whether they
are actually acting as a second punishment for the same offence.
I would very much appreciate it if anyone affected with Confiscation Orders would
email me to tell me about their story so I could take it into account in my research.
My email is ….
Regards
name
98
Appendix D
Further to my conversation with your office yesterday, I would be grateful if the
following questions for written answer could be tabled:
QUESTIONS FOR WRITTEN ANSWER
[Ministry of Justice]
Questions in respect of Confiscation Orders
1.
To ask Her Majesty’s Government how many prisoners are currently serving a
term of imprisonment for default in the payment of Confiscation Orders?
2.
To ask her Majesty’s Government to confirm the annual amount recovered
from Confiscation Orders in 2011?
3.
To ask her Majesty’s Government the number of Confiscation Orders which
resulted in default sentences being activated in 2011?
4.
To ask her Majesty’s Government the range of default sentences set by the
Crown Courts for non-payment of Confiscation Orders in 2011?
5.
To ask her Majesty’s Government to list the different type of offences which
resulted in Confiscation Orders being made in 2011?
6.
To ask her Majesty’s Government the estimated costs of Confiscation
Proceedings in 2010 and 2011arising out of court hearings, the use of expert
witnesses, enforcement and default prison sentences?
Thank you very much for your help.
Yours,
Martin Thomas
Lord Thomas of Gresford
99
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