Frequently a convicted defendant will be shocked by reading that he has a ‘criminal lifestyle’. The assertion may be found in a prosecutor’s s16 statement in confiscation proceedings under the Proceeds of Crime Act 2002 in England and Wales. The defendant may think he is being accused of being a career criminal – or even a gangster like Al Capone. The reality is rather different.
But who has a ‘criminal lifestyle’? What are the implications of a ‘criminal lifestyle’?
Who has a ‘criminal lifestyle’?
A defendant has a ‘criminal lifestyle’ for confiscation purposes if at least one of the three alternative criteria of s75 PoCA 2002 are met. But he does not have a ‘criminal lifestyle’ if none of the criteria are met. So what are these three criteria – or alternative routes to a finding that he has a ‘criminal lifestyle’?
The first is that the defendant has been convicted of one (or more) of the offences listed in schedule 2 PoCA 2002. Many of these offences are undeniably serious, such as arms trafficking and directing terrorism. It should come as no surprise that drug trafficking offences are also listed (although the scope of these offences may be wider than is sometimes appreciated – the defendant who has a friend’s cannabis in his pocket may be convicted of possession of a controlled drug with intent to supply).
The scheduled offences also include some offences which are less self-evidently serious
The scheduled offences also include some offences which are less self-evidently serious. A person convicted of selling fake ‘Levi’ jeans at a car boot sale, for example, may not be severely punished for that in the Magistrates’ Court but will have a ‘criminal lifestyle’ in confiscation proceedings as his offence features in schedule 2. (Note that Schedule 2 has been subject to various amendments since PoCA 2002 was enacted.)
In relation to the schedule 2 offences just one conviction, however small the amount involved, is sufficient to establish that the defendant has a ‘criminal lifestyle’.
this route is intended to deal with a person who has committed a number of offences
The second route involves multiple offences of any type or types providing that the total relevant benefit obtained by the defendant from the offences (including any offences ‘taken into consideration’ in sentencing for any of the relevant offences) is at least £5,000 and either he has been convicted in the same court proceedings of at least four offences from which he has obtained a benefit, or in the six years prior to being charged with the offence currently before the court he has been convicted on at least two separate occasions of offences from which he has obtained a benefit.
So this route is intended to deal with a person who has committed a number of offences – for example a person who has been convicted of multiple thefts.
covers a person who has been convicted of an offence carried out over a period of at least six months
The third route covers a person who has been convicted of an offence of any type carried out over a period of at least six months from which he has obtained a benefit of at least £5,000 (including any benefit from other offences ‘taken into consideration’ in sentencing for the relevant offence).
So, for example, a person convicted of receiving state benefits to which he is not entitled over a period of at least six months who obtains at least £5,000 as a result of failing to notify the authorities of a change in his circumstances will have a ‘criminal lifestyle’ – even though he will have been convicted of only a single offence.
In some cases the Magistrates’ Court will deal with the offence itself – but confiscation proceedings are always conducted in the Crown Court and the Magistrates will send the matter on to the Crown Court to deal with that aspect of sentencing.
(This article deals with the law in England and Wales. Similar rules apply in Scotland and Northern Ireland but with some important differences.)
What are the implications of a ‘criminal lifestyle’?
In the confiscation proceedings perhaps the most important effect of a ‘criminal lifestyle’ is that the statutory assumptions of s10 PoCA 2002 are triggered. When assessing the defendant’s ‘benefit’ for confiscation purposes in a ‘criminal lifestyle’ case the prosecutor will typically investigate money and assets which have passed through the defendant’s hands or come under his control since the ‘relevant day’. The ‘relevant day’ is normally the day six years before the day on which the defendant was charged with the offence of which he has been convicted.
In effect anything the defendant has had at any time since the ‘relevant day’ is assumed to be proceeds of crime
The prosecutor may in effect assume that anything the defendant has had at any time since the ‘relevant day’ is proceeds of crime (sometimes referred to as the defendant’s benefit from his assumed general criminal conduct). It is then for the defendant (and his legal team, possibly with the assistance of a forensic accountant such as myself) to satisfy the court that those monies or assets are in fact not proceeds of crime, for example by showing that money has come from legitimate earnings.
There are other implications of a finding of a ‘criminal lifestyle’, for example in relation to gifts made by the defendant since the ‘relevant day’, but there is not space in this article to go into further details.
Other articles on this blog deal with other aspects of confiscation in more detail.