The provisions of the Serious Crime Act 2015 were designed to strengthen the criminal justice process by:
- (a) making it easier to strip criminals of the proceeds of their crimes;
- (b) cracking down on cyber crime and serious, organised, gang-related and international crime;
- (c) better policing the use and trade of ‘cutting-agents’ (to assist in the war on drugs); and
- (d) tackling gaps in child neglect and cruelty legislation.
This is an overview of the changes to the proceeds of crime legislation, most of which came into force on 1 June 2015.
- S 1 for the first time creates a right for third parties to participate in confiscation proceedings and empowers judges to decide how much of an asset the defendant owns before making a confiscation order in respect of it.
- S 2 creates responsibilities for prosecutors and judges to identify and investigate potential third party interests in assets during confiscation proceedings.
- S 3 extends the right to appeal confiscation orders to prosecutors and third parties, where relevant.
- S 4 preserves third parties’ rights to make claims over assets during proceedings to appoint receivers to liquidate those assets if they have not been given ‘a reasonable opportunity’ to do so previously.
- S 5 reduces the maximum time to pay a confiscation order from six to three months.
- S 6 ensures payments to victims including compensation and ‘victim surcharge payments’ take priority over the government’s recovery under confiscation orders.
- S 7 for the first time enables judges to impose ‘compliance orders’ to induce defendants to pay their confiscation orders.
- S 8 facilitates writing off confiscation orders following the death of defendants, where recovery is impractical.
- S 9 permits confiscation orders to be made against a defendant who absconds shortly before the conclusion of their trial.
- S 10 creates a new ‘sliding scale’ of prison sentences to be served in default, which make the idea of not paying a confiscation order much less appealing.
- S11 makes it easier for officers to apply for restraint orders by amending the test to ‘reasonable cause to suspect’ and gives the Court greater oversight of restraint orders pre-charge.
- S12 Gives prosecutors time to apply for a retrial against defendants whose convictions are quashed but are subject to restraint, before the restraint order is automatically discharged.
- S14 makes it easier for prosecutors to seize money from a defendant’s bank accounts, where a confiscation order has been made.
Together these provisions achieve three aims:
- They make it less attractive for defendants not pay confiscation orders;
- They increase the chances that confiscation orders will be enforced without unnecessary delay or third party litigation; and
- They emphasise the restitutionary aims of the proceeds of crime legislation over and above its punitive aims. There is simply no point in obtaining unenforceable orders and no merit in obtaining orders which disregard the interests of victims or the public as a whole.
Gillian Bradbury is a solicitor at Byrne & Partners