Goodbye to ill-gotten gains

A criminal's assets, tainted or not, are fair game for confiscation, writes Grania Langdon-Down

Lottery winnings, a house inherited from a relative, rent paid by tenants - all good clean money. But if you are a criminal, it's fair game for the Crown Prosecution Service's Central Confiscation Branch (CCB).

From today the screw can be turned even tighter as new powers come into force. Criminals involved in fraud, organised crime, pornography and other serious offences can now be subjected to the same wide-ranging powers of confiscation as drug traffickers. The Proceeds of Crime Act 1995 extends both police powers to investigate a criminal's financial background and court powers to strip them of his ill-gotten gains.

The idea that the CCB does not just go after "tainted" assets often comes as a surprise to crooks, says the unit's head, Sue Taylor. "We get amazed letters from solicitors when we go after clean assets saying 'you can't touch that'. But we can, and do."

If a criminal was said to have made pounds 100,000 from crime but had squandered all the money, then the order must be paid from the sale of other assets, legitimately owned or not, even if that means, for example, making his family homeless.

Miss Taylor says: "I call it the 'but for' rule - but for the proceeds of the crime, the person wouldn't have the house or the business or affluent lifestyle."

The wives of convicted criminals in a TV comedy might enjoy the good life while their husbands are inside. But in the real world, the Chigwell house in Birds of a Feather would have gone into the pot along with any other realisable asset.

Confiscation orders can make even bankruptcy seem generous as a receiver acting under the Drug Trafficking Act or Proceeds of Crime Act can take every single asset, down to the clothes the person is wearing. However, the new provisions are complex and are likely to prove fertile ground for litigation. While criminals may roll over quietly and accept a prison sentence, they will fight tooth and nail to keep their lifestyle sweet for their release.

The key elements of the new Act are:

Courts can make assumptions about how much a defendant, convicted of two or more offences (one of which may be a previous conviction) committed after 1 November, has funded his lifestyle through crime. It can then make a confiscation order to the value of any unexplained assets passing through his hands during the previous six years. It is up to the defendant to prove they were legitimately obtained.

A criminal defaulting on payment will no longer be able to wipe out his debt by serving a longer prison sentence.

The CPS can ask for a review of a confiscation order to increase the amount if investigators discover previously hidden assets up to six years after conviction.

There is no right to silence. The courts will have the power to order a defendant to give information even if it is self-incriminatory, and can draw an inference from a refusal to respond; and

The pounds 10,000 minimum limit on confiscation orders no longer applies.

The Act amends the 1988 Criminal Justice Act, which required the prosecution to prove beyond reasonable doubt that the benefit had been derived from the offence for which the defendant had been convicted.

In February the 1993 Criminal Justice Act lowered the level of proof to the civil standard of balance of probabilities and allowed confiscation hearings to be postponed until after the defendant had been sentenced.

Miss Taylor, a barrister who joined the CPS at its inception in 1986, has headed the CCB since 1990. Her team includes eight lawyers, although there are only six now in post, two examiners trained in accountancy and six administrative staff. She feels the UK is the "world leader" in legislation tackling proceeds of crime. However, there are now three versions of the 1988 Criminal Justice Act, under which confiscation orders can be made in non-drug cases. The crucial factor in deciding which powers can be used will be the date the offence was committed.

The CPS is not alone in processing confiscation cases. Customs and Excise and the Serious Fraud Office have their own units.

Between 1987-94, the courts issued 6,653 confiscation orders in drugs cases totalling nearly pounds 77m. Between 1989-94, 61 orders were made in cases involving other serious crimes, adding up to more than pounds 5.1m. The highest confiscation order made so far in a non-drugs case is the pounds 1.5m order against the retired Ministry of Defence official Gordon Foxley, jailed for four years for taking bribes from three foreign arms companies.

Figures for the total amount actually recovered and paid to the Treasury are harder to find, as many cases take years to resolve. Assets may also be worth less than expected, particularly if tracking work has had to be suspended during lengthy appeals. The property crash left the CCB with suburban semis in negative equity on which no mortgage payments had been made for two years. A drug dealer's Range Rover, valued at more than pounds 5,000, was worth only a tenth of that after the drugs squad and sniffer dogs had been through it and the car had been left in the open in the police pound during the case. If there proves a considerable shortfall, it is possible to go back to the court to obtain a certificate of inadequacy.

But there are success stories. In the case of Rene Black, Britain's first identified drug millionaire and supergrass, the team recovered pounds 900,000 from his UK assets.

In response to the new powers, Miss Taylor has issued prosecutors across England and Wales with guidance, asking them to contact the CCB as soon as they think they have a likely confiscation case. While the branch will not take over the prosecution, it will make the decision whether or not to trigger confiscation proceedings once it has studied details of the defendant's assets provided by the police.

The CCB is now dealing with about 600 cases, two-thirds of them drug- related, involving millions of pounds. How much its workload increases with the new provisions will depend on the extent to which the police and prosecutors identify suitable cases. Andrew Mitchell, a barrister and head of the asset forfeiture team at Furnival Chambers, says: "The impact of the new legislation will depend on police resources and determination to investigate criminal backgrounds and on the part of the courts in getting to grips with it, given their marked reluctance in the past. Judges have always loathed the assumptions element of the Drug Trafficking Act.

"However, the CCB and other confiscation units are ill equipped to handle the necessary increase in work if the new provisions are used properly. There have been some good orders but if there is a weakness, it is in enforcement - they try hard but there are a number of files just gathering dust." Added to that is a perception that the smart crook who knows how to invest shrewdly and refuses to co-operate keeps his money.

But Miss Taylor is sanguine about such claims: "If these criminals get caught, they can't be all that astute. They have usually left an audit trail somewhere. And many countries, even Switzerland, are much more open now, as long as the crime involved is considered an offence under their own jurisdiction." Britain has agreements with other countries to execute each other's court rulings, with the country carrying out the order keeping the money as a "reward".

Still, it is hard work parting the crook and his money. "People who live on the edge of the law are not going to co-operate. They are always playing for time, trying to negotiate a smaller amount," says Miss Taylor.

Voices
The Sumatran tiger, endemic to the Indonesian island of Sumatra, is an endangered species
voicesJonathon Porritt: The wild tiger population is thought to have dropped by 97 per cent since 1900
Arts and Entertainment
Beast would strip to his underpants and take to the stage with a slogan scrawled on his bare chest whilst fans shouted “you fat bastard” at him
musicIndie music promoter was was a feature at Carter gigs
News
news
Arts and Entertainment
Story line: Susanoo slays the Yamata no Orochi serpent in the Japanese version of a myth dating back 40,000 years
arts + entsApplying the theory of evolution to the world's many mythologies
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebookA unique anthology of reporting and analysis of a crucial period of history
News
Performers dressed as Tunnocks chocolate teacakes, a renowned Scottish confectionary, perform during the opening ceremony of the 2014 Commonwealth Games at Celtic Park in Glasgow on July 23, 2014.
news
Life and Style
Popular plonk: Lambrusco is selling strong
Food + drinkNaff Seventies corner-shop staple is this year's Aperol Spritz
News
Gardai wait for the naked man, who had gone for a skinny dip in Belfast Lough
newsTwo skinny dippers threatened with inclusion on sex offenders’ register as naturists criminalised
News
Shake down: Michelle and Barack Obama bump knuckles before an election night rally in Minnesota in 2008, the 'Washington Post' called it 'the fist bump heard round the world'
newsThe pound, a.k.a. the dap, greatly improves hygiene
Arts and Entertainment
La Roux
music
Arts and Entertainment
Graham Fellows as John Shuttleworth
comedySean O'Grady joins Graham Fellows down his local Spar
News
people
News
Ross Burden pictured in 2002
people
News
Elisabeth Murdoch: The 44-year-old said she felt a responsibility to 'stand up and be counted’'
media... says Rupert Murdoch
Arts and Entertainment
tv
Extras
indybest
Sport
Arsenal signing Calum Chambers
sportGunners complete £16m transfer of Southampton youngster
Independent
Travel Shop
the manor
Up to 70% off luxury travel
on city breaks Find out more
santorini
Up to 70% off luxury travel
on chic beach resorts Find out more
sardina foodie
Up to 70% off luxury travel
on country retreats Find out more
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Junior / Graduate Application Support Engineer

£26000 per annum: Ashdown Group: A highly successful international media organ...

QA Manager - North Manchester - Nuclear & MOD - £40k+

£35000 - £41000 per annum + competitive: Progressive Recruitment: QA Manager -...

Property Finance Partner

Very Competitive Salary: Austen Lloyd: LONDON - BANKING / PROPERTY FINANCE - ...

Agile Tester

£28000 - £30000 per annum + competitive: Progressive Recruitment: An ambitious...

Day In a Page

The children were playing in the street with toy guns. The air strikes were tragically real

The air strikes were tragically real

The children were playing in the street with toy guns
Boozy, ignorant, intolerant, but very polite – The British, as others see us

Britain as others see us

Boozy, ignorant, intolerant, but very polite
Countries that don’t survey their tigers risk losing them altogether

Countries that don’t survey their tigers risk losing them

Jonathon Porritt sounds the alarm
How did our legends really begin?

How did our legends really begin?

Applying the theory of evolution to the world's many mythologies
Watch out: Lambrusco is back on the menu

Lambrusco is back on the menu

Naff Seventies corner-shop staple is this year's Aperol Spritz
A new Russian revolution: Cracks start to appear in Putin’s Kremlin power bloc

A new Russian revolution

Cracks start to appear in Putin’s Kremlin power bloc
Eugene de Kock: Apartheid’s sadistic killer that his country cannot forgive

Apartheid’s sadistic killer that his country cannot forgive

The debate rages in South Africa over whether Eugene de Kock should ever be released from jail
Standing my ground: If sitting is bad for your health, what happens when you stay on your feet for a whole month?

Standing my ground

If sitting is bad for your health, what happens when you stay on your feet for a whole month?
Commonwealth Games 2014: Dai Greene prays for chance to rebuild after injury agony

Greene prays for chance to rebuild after injury agony

Welsh hurdler was World, European and Commonwealth champion, but then the injuries crept in
Israel-Gaza conflict: Secret report helps Israelis to hide facts

Patrick Cockburn: Secret report helps Israel to hide facts

The slickness of Israel's spokesmen is rooted in directions set down by pollster Frank Luntz
The man who dared to go on holiday

The man who dared to go on holiday

New York's mayor has taken a vacation - in a nation that has still to enforce paid leave, it caused quite a stir, reports Rupert Cornwell
Best comedians: How the professionals go about their funny business, from Sarah Millican to Marcus Brigstocke

Best comedians: How the professionals go about their funny business

For all those wanting to know how stand-ups keep standing, here are some of the best moments
The Guest List 2014: Forget the Man Booker longlist, Literary Editor Katy Guest offers her alternative picks

The Guest List 2014

Forget the Man Booker longlist, Literary Editor Katy Guest offers her alternative picks
Jokes on Hollywood: 'With comedy film audiences shrinking, it’s time to move on'

Jokes on Hollywood

With comedy film audiences shrinking, it’s time to move on