When confiscation proceedings are initiated in the Crown Court in England and Wales following the conviction of a defendant an issue can arise as to whether those confiscation proceedings should be under the Proceeds of Crime Act 2002 or earlier legislation.
On the face of it there should be no difficulty. This is because article 3(1) of The Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendment) Order 2003 SI 2003 No 333 says:
“Section 6 of the Act (making of confiscation order) shall not have effect where the offence, or any of the offences, mentioned in section 6(2) was committed before 24th March 2003”.
In addition article 1(3) says:
“Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of this Order to have been committed on the earliest of those days”.
if any of the offences of which the defendant has been convicted occurred, or commenced, before 24 March 2003 the confiscation should be under the earlier legislation
So it would appear that if any of the offences of which the defendant has been convicted in the proceedings occurred, or commenced, before 24 March 2003 then the confiscation should be under the earlier legislation.
So, in the case of R v Lazarus  EWCA Crim 2297, the defendant appealed a confiscation order made under PoCA 2002 on the basis that one of the offences of which he had been convicted related to being concerned in the supply of cocaine between 1 December 2002 and 7 May 2003. The Court of Appeal quashed the confiscation order made under PoCA 2002 but substituted a confiscation order under Drug Trafficking Act 1994.
However the matter is not always that straightforward.
In the case of R v Stapleton  EWCA Crim 1308 the Court of Appeal considered another appeal against a confiscation order made under the ‘wrong’ statute. The confiscation had been conducted under PoCA 2002 although the defendant had been convicted of six Theft Act 1968 offences in all, two of which occurred prior to 24 March 2003. Ordinarily, in these circumstances, confiscation should have been under the provisions of the Criminal Justice Act 1988 (as amended by the Proceeds of Crime Act 1995). Nevertheless the Appeal Court held the PoCA 2002 confiscation order to be valid because the Crown had not relied in the confiscation proceedings upon the convictions for the offences which pre-dated the introduction of the PoCA 2002 confiscation provisions.
However it seems to me that the Court of Appeal did not suggest that, in such circumstances, it was preferable for the proceedings to be conducted under the PoCA 2002 provisions.
a convicted defendant may be potentially disadvantaged by the use of the PoCA 2002 provisions
Also, in my view a convicted defendant may be potentially disadvantaged (arguably unfairly) by the use of the PoCA 2002 provisions, rather than earlier legislation, in two respects:
(1) Under s11 PoCA 2002 the Crown Court has very limited scope to postpone the due date for payment of any sum due under a confiscation order, whereas there is no corresponding statutory time limit under CJA 1988 or under DTA 1994; and
(2) Under s22 PoCA 2002 a court may take into account, at a later hearing, assets legitimately acquired after the date of the confiscation order and recalculate the defendant’s ‘available amount’, whereas there is no corresponding provision under CJA 1988 (but note that there is a corresponding provision by s16 DTA 1994).
It might therefore be said that the defendant will be unjustly disadvantaged if the Crown are permitted to proceed under PoCA 2002 in the face of the natural meaning of the transitional provisions where the defendant has been convicted in the proceedings of one or more offences which pre-date 24 March 2003. It could be argued that the use of PoCA 2002 provisions in such circumstances amounts to retrospective application of legislation, possibly in breach of the convicted defendant’s human rights.
Where a defendant is unable to satisfy a confiscation order by the due date – which cannot be later than 12 months from the date of the order under PoCA 2002 – interest commences to run on the amount outstanding at the rate applicable to civil judgment debts (s12 PoCA 2002, s75A CJA 1988, s10 DTA 1994). The judgment debt interest rate remains at 8% per annum, which is out of line with current commercial interest rates.
there may be a case for arguing that an order made under PoCA 2002 should be replaced
So there may be a case for arguing that an order made under PoCA 2002 should be replaced by an order of a similar amount made under earlier legislation where one or more of the offences of which the defendant has been convicted in the proceedings occurred, or commenced, prior to 24 March 2003.
The Court of Appeal has also had occasion to deal with an error of the opposite type. In the case of R v Bukhari  EWCA Crim 2915 the defendant appealed against a confiscation order made under CJA 1988 provisions following convictions for offences which occurred after 23 March 2003. The Court of Appeal quashed the order under CJA 1988 and substituted a confiscation order for the same amount under PoCA 2002.
Ultimately it does appear therefore that a convicted defendant will not be able to escape the consequences of confiscation even where initially the court makes the confiscation order under the ‘wrong’ legislation.