The UK’s confiscation regime: your rights explained
If you’ve been convicted of a crime (especially something fraud, or drug related), you may also be given a confiscation order. The confiscation order is the legal way of making you repay the ‘benefit’ you received for carrying out the crime you were convicted for. It’s like a large fine that you pay to the state.
How much will I have to pay?
Every case is different and there is no fixed sum. You have to pay an amount equal to the amount that the Court thinks you have benefitted from your criminal conduct.
The Court takes into account your ability to pay, and they look at what you own that could pay back the ‘benefit’ figure.
What can I do to reduce the payment?
Once the order is made, you can’t reduce the payment. But you can take steps to make sure the order isn’t wildly outside your means to pay.
First, you have to set out your financial circumstances in a ‘Statement of Assets.’ This needs to be accurate and honest. It’s sometime called your ‘section 18 statement’ and you need to disclose details of your bank accounts, property, cars, what you have spent recently, and any other assets.
At the same time, the prosecution prepares their ‘Statement of Information.’ This is may be referred to as a ‘section 16’ statement. This document sets out the prosecution’s understanding of your circumstances. This will include things like:
· Do you have a criminal lifestyle?
· Have you benefitted from your criminal conduct?
· If so, by how much have you benefitted?
You can read through this document and say whether you accept or deny the allegations. You put your side of the story in a ‘section 17’ statement, which your solicitors will help you prepare. If you can provide evidence that supports what you say, and contradicts what the prosecution says, then you may receive a lesser order.
Responding to the prosecution’s assertions can take a lot of time and effort, and you have to gather the right information to put in your section 17 statement. It’s worth putting the time in with your solicitor to get this right.
Don’t be tempted to hide any assets
If there is a difference between what the prosecution thinks you have received from your crime, and what you say your available assets are, then the prosecution may say to the Court that you have hidden some of the proceeds of your crime. By that, they mean that you have transferred money to people abroad, or put money in overseas bank accounts.
Hiding your assets will likely result in a greater level of penalty. You could be asked to pay hundreds of thousands of pounds that you don’t have, or the Court can impose a freezing order on you. If your assets are frozen, you won’t be able to spend money freely, or sell your assets without restrictions.
What happens at the hearing?
You may not have to go to Court for a hearing about your confiscation order. In fact, most cases don’t end in a hearing at Court. Usually, you can agree with the prosecution what the ‘benefit’ is and what your assets are, and then the Judge makes a confiscation order in the agreed sum.
But if you contest what the prosecution says about you, and you can’t agree, you will need to attend the Crown Court for confiscation proceedings. The prosecution will present information to the Court about their investigations into you.
Your lawyer will share your side of the story with the Court.
The Court then makes a finding of fact and law and decides what the ‘benefit’ is and what your assets are. The Judge then puts his findings in writing and makes the order.
Can I get legal aid?
If you had legal aid for your main Crown Court hearing, then you’ll be entitled to legal aid for these confiscation proceedings.
If you didn’t, then it’s still possible to get legal aid to help you answer the prosecution’s allegations and prepare your defence. You have to apply to Court to get legal aid, and you need to fill out a CRM14 form to apply.
Whether or not it is successful depends on whether the Court thinks it is in the ‘interests of justice.’ They will look at your previous convictions, the nature of the offence, and the risk of custody and make a judgment about whether or not you qualify for legal aid.
You can find out more about how to work out if you qualify for legal aid here.
In these proceedings, they don’t look at your income because these particular proceedings are not means tested.
How long do I have to pay the confiscation order?
Usually, you have to make the payment within 3 months. If that’s not possible, and you’ve made a good attempt to pay the money, then the Court might grant you an extension of another 3 months.
What happens if I don’t pay the confiscation order?
If you don’t pay the amount you’re ordered to pay, you could be sent to prison for up to 10 years.
The Court may also decide to appoint someone to take control of your assets, so you wouldn’t be able to sell your home without permission, for example, and you might have a limit on the amount you can spend every month. You may also be banned from leaving the country.
How do I pay?
You’ll receive a written order with the details of how to pay. The Court will tell you whether you need to pay the full amount immediately, or pay in instalments.
How Harewood Law can help
We can help you understand the charges against you and prepare your defence. We know which documents will help you to evidence your asset position and we can help you pull together all the relevant evidence to give you the best chance of presenting your position fairly and accurately to the prosecution. Please get in touch if you’d like to find out more.