Confiscation – default sentence

When making a confiscation order in the Crown Court the judge will specify a ‘default sentence’ – a consecutive prison term which the defendant may be required to serve if he fails to satisfy the confiscation order.  A default sentence could be described as an additional penalty for failing to pay the confiscation order on time.

The intention is that the threat of triggering the default sentence will encourage the defendant to pay up.  Serving the default sentence is not an alternative to paying the confiscation figure – the amount originally ordered to be paid remains payable even after the default sentence has been served.

 

How long is the default sentence?

The MAXIMUM length of the default sentence which the Crown Court judge may specify when making the confiscation order is set out in s139 Powers of Criminal Courts (Sentencing) Act 2000.  The maximum is related to the amount which the defendant is ordered to pay, which is sometimes referred to as the ‘recoverable amount’.  This will be the lower of his ‘benefit’ and his ‘available amount’ as found by the Crown Court.

These maximum sentences are set out in bands in s139(4), depending upon the amount ordered to be paid:

An amount not exceeding £200 7 days
An amount exceeding £200 but not exceeding £500 14 days
An amount exceeding £500 but not exceeding £1,000 28 days
An amount exceeding £1,000 but not exceeding £2,500 45 days
An amount exceeding £2,500 but not exceeding £5,000 3 months
An amount exceeding £5,000 but not exceeding £10,000 6 months
An amount exceeding £10,000 but not exceeding £20,000 12 months
An amount exceeding £20,000 but not exceeding £50,000 18 months
An amount exceeding £50,000 but not exceeding £100,000 2 years
An amount exceeding £100,000 but not exceeding £250,000 3 years
An amount exceeding £250,000 but not exceeding £1 million 5 years
An amount exceeding £1 million 10 years

 

[UPDATE: See a revised table of default sentences from 1 June 2015 HERE.]

However a judge may specify any length of default sentence, even a very short one – provided he does not exceed the relevant maximum length from this table.

In practice judges have been encouraged by decisions of the Court of Appeal in cases such as Pigott v R [2009] EWCA Crim 2292 to use appropriate discretion in fixing default sentences and not to automatically apply the maximum sentences set out in s139Typically the judge will fix a default sentence somewhere between the maximum for the appropriate band in the table and the maximum for the band below, bearing in mind that the purpose of the default term is to secure payment of the confiscation order.  But judges are discouraged from applying a purely mathematical approach to fixing the default term.

 

An example

So, for example, if a confiscation order was being made in the sum of £500,000 one would expect the judge to set a default sentence no greater than the maximum permitted for that amount (which is 5 years) and no less than the maximum for the band below (which is 3 years).

But one would not expect the judge to feel bound to fix the default sentence at a term based on a mathematical calculation, which would be 3 years 8 months (i.e. 3 years plus one third of an extra 2 years because the amount of £500,000 is one third of the way between £250,000 and £1,000,000).

 

Co-operation

Although the judge should consider all the circumstances of the case in fixing the default sentence, he is likely to be particularly influenced by the co-operation, or lack of it, which the defendant has displayed in his conduct in relation to the confiscation proceedings.

 

Very large amounts

A particular difficulty arises where the confiscation order is for an amount in excess of £1 million because the table gives no guidance as to when it may become appropriate for a default sentence to be made in the maximum period of 10 years.

The Court of Appeal considered this point in the case of R v Castillo [2011] EWCA Crim 3173 in which a default term had been set at 10 years in relation to an order for £3 million against a defendant who was held to have deliberately hidden his ill-gotten gains outside the UK.

Notwithstanding the size of the order and the lack of co-operation from the defendant, the Court of Appeal reduced the default sentence in Mr Castillo’s case to nine years.

 

Early release

Prisoners who are further detained at the end of their sentence in default of a confiscation order are eligible for early release at the halfway stage of the default sentence under s258 Criminal Justice Act 2003 and are eligible to be considered for early release on temporary licence (see chapter 5.3 of Prison Service Order 6300).

[UPDATE: See revised position re orders of £10 million or more from 1 June 2015 HERE.]

But in addition a default term is reduced pro-rata to any payments received in part satisfaction of the confiscation order.  This is a purely mathematical exercise. (The underlying statute law involves a complex path from s35(2) PoCA 2002 to ss139 & 140 Powers of Criminal Courts (Sentencing) Act 2000 to s79(2) Magistrates’ Courts Act 1980. There are worked examples of the calculation in Chapter 16 of PSO 6650 ‘Sentence Calculation’.)  So, for example, suppose Timothy had been ordered to pay £600,000 with a four year prison term in default.  Let’s say Timothy has paid £500,000 and there remains £100,000 outstanding.  Timothy’s default sentence has now become 8 months – or, more accurately, 243 days (i.e. one-sixth of his original default sentence of 4 years because one-sixth of the original amount remains outstanding).

[UPDATE: See a more detailed article about reductions for part payments HERE.]

Contrast this with Gerald who has a confiscation order made against him for £100,000 with a default sentence set at 2 years and has made no payment off it.  Gerald also has £100,000 outstanding but, unlike Timothy, his default sentence is 2 years.  That apparent unfairness is a result of the non-linear basis of the table of default sentences in s139.

 

Appeals

In the past default sentences have proved to be a fertile ground for appeals by defendants – particularly where the Crown Court judge has been too quick to apply the maximum term specified in s139.  In all likelihood we shall continue to see a steady stream of such cases making their way to the Court of Appeal.

However it appears that the prosecution has no right to appeal against a default sentence which it considers is too short, see R v Mills [2018] EWCA Crim 944 at para [37].

 

David

(Note: This article applies to default sentences relating to confiscation orders under the provisions of Part 2 of the Proceeds of Crime Act 2002 in England and Wales. There are a number of additional issues which could be relevant to a defendant’s default sentence in particular cases which it is not possible to deal with in a relatively short article such as this.  Appropriate professional advice should be sought in each individual case.)

64 thoughts on “Confiscation – default sentence”

  1. Hi David, can you answer this discussion point, there is a school of thought around certain circles that if a convicted (white collar crime) person fails to satisfy a confiscation order and that person is in say a cat A prison awaiting transfer they will not be moved to a lower grade prison until the order is satisfied

    1. I can answer that one. In Prison Service Orders (PSOs) it does state that unsettled confiscation orders could prevent recategorisation. I don’t think it would bar a recategorisation from A to B, however it will definitely prevent a move from C to D (open conditions). Trust me on this because it happened to me!

    2. I was put in prison for first offence ever for distribution of C.Ds then got confiscation order, in the prison we watched fake c.ds and cooed movies provided by the authorities in 2005. I had to go back to prison prison for default. I have worked all my life never been in trouble in my life , they put me in prison twice took my home I mortgaged from 1982 ( they was no technology to produce c.ds then. Today 20018 they still want £75.000 off me , I am now getting charged £16.50 interest a day

  2. I am currently serving default sentence of confiscation of 730 days, where I should serve half of that period. Is that correct?
    Also what would be the situation after my release that I have any legal rights to declare bankruptcy or filing inadequacy order, because I have no hidden assets, but judge assumed that sentence would be proportionate from his own judgement.
    Please help me in relation to above matters.

    many Thanks

    1. Krish

      You need legal advice from a lawyer. I am not a lawyer I am an accountant.

      With regard to release at the half-way stage of the default term s258 Criminal Justice Act 2003 & Chapter 5.3 of PSO 6300 are relevant, the PSO includes the following:

      “Prisoners who are further detained at the end of their sentence in default of a confiscation order are eligible to be considered for temporary release, provided that they are committed to custody for a sufficiently long period to qualify within the terms of this order. Where a prisoner has a term in default for non-payment of a confiscation order / fine ordered to run consecutive to a sentence of imprisonment, the ROTL eligibility date should be (re-) calculated on the basis of the overall custodial period to be served (i.e. the period between the date the initial criminal sentence was imposed and the release date of the default term).”

      See my blog article ‘Can a bankrupt individual be subject to confiscation?‘ for some help on the bankruptcy point, but each person’s situation needs to be considered on its own facts.

      David

  3. What recourse does the law have to further punish an individual who has been made the subject of a confiscation order, served the default sentence in full and been released. Obviously the debt is still owed, but what powers, if any does the court have to further punish you? Am I right in thinking that you cannot be sent back to prison after serving a default sentence for the same debt?

    1. A person who has served a default sentence cannot be required to serve it again in respect of the same debt – but can be required to serve an extra term in relation to outstanding interest on the debt.

      The debt is still owed and the prosecution can apply to the Court to enforce the debt. For example the prosecution could ask the Court to appoint an enforcement receiver to take ownership of the defendant’s assets (assuming that he has some) and sell them.

      David

  4. Hi David
    My partner did an offence in 2010 of which he served a jail term. Then was kicked out on streets by family due to shaming them. It was 3500. He was sleeping rough at my freinds snooker club on chairs. All he had was clothes he was wearing. I use to go and take him food.
    My mate recommended him as a carer as would be helpful for both. He become my soul carer as need 24hr supervision. I paid 500 pound off his debt day before court; sent bank statements, gp letters, disability certificate to prove all of this. He was arrested from work for this and lost his job without pay as he didn’t tell them of conviction. He was only there a month. I sent so much paperwrk to state I need help 24 hours a day and he was sentenced to 61 days. I am struggle as my support network has been taken and I’m without a carer; so can’t do shopping or go appointments as he took me. He had duty solicitor and don’t feel judge took all this into account. Is there anything I can do? Kind regards

    1. I am sorry to hear this. I am not a lawyer so I cannot advise you. In any event if the information was put before the court and they made their decision there is nothing I can suggest.

      David

  5. Hi
    My partner has a confiscation order of £19,000. He’s due for tagging in August but no one really has the answers for my questions. Do you know if he can get tag with his outstanding proceeds?
    His 6 months end on the 18th of October but if he don’t get a tag he’s got no way in paying it. He wont get releases till December but will he get released then or will he have to do another prison sentence?
    If so how long would it be and if we could get £10,000 would he be able to get released in August or will there be another prison sentence for the £9,000?
    I’m grateful if you could help in anyway – second solicitor and still no one knows.
    Thank you
    Becca

    1. Becca

      I am an accountant, not a solicitor. You really need a solicitor to advise you about this.

      For what it’s worth, my understanding is that in the event of non-payment there will be a hearing in the Magistrates’ Court which the defendant must attend (either in person or by video link) and at that hearing the Magistrates will issue a ‘committal order’.

      A prisoner serving a sentence for an offence (the main sentence – not a default sentence) will normally be released on Home Detention Curfew (a tag), if he is eligible, on the date notified to him. He cannot be retained in prison when he should have been released on a tag simply because he has an outstanding confiscation debt. He can only be retained in prison if the Magistrates Court has made a committal order.

      My understanding is that the Magistrates Court will not make a committal order until after the time to pay has expired.

      When the confiscation order was made the judge will have said how long the default sentence will be if the amount is not paid. If part of the amount due is paid then the default sentence is reduced in proportion. There is no release on HDC (a tag) during the default sentence – but there is release on temporary licence (ROTL) in a default sentence.

      David

  6. Hi David,are you able to tell me what happens to an individual who has served their default sentence and after they are released, they sell an asset which the prosecution did not know about at the time of the sale but have become aware of the asset after the sale? They are in breach of the original Restraint Order arguably or does the Restraint Order cease to have effect after a Confiscation Order is made? What sanctions are available if they sell an asset after they have served the default sentence?

    1. Tony
      You are asking about the law. I am not a lawyer – I am an accountant. You need to seek advice on these questions from a lawyer.
      Where a restraint order is made and there is also a confiscation order then s42(6) PoCA 2002 says the restraint order must be discharged (cancelled) “on the conclusion of the proceedings”.
      That means when the confiscation order has been satisfied or discharged – see s85(5).
      But if an additional asset ‘turns up’ there is a possibility that the Crown will seek amendment of the defendant’s ‘available amount’ under s22.
      Discuss these issues with a lawyer.
      David

    2. Failure to disclose an asset would be in breach of the restraint order and would be treated as a contempt of court.

    1. If it was the case that your original confiscation order amount was based on your ‘available amount’ and your ‘available amount’ now is less (because your business has gone into liquidation) then it may be possible to have the amount of the confiscation order reduced.

      You need to contact a solicitor about making an application to the Crown Court under s23 PoCA 2002.

      If the court reduces the amount you have to pay it may at the same time reduce your default sentence.
      David

  7. Hi I’ve already served my sentence for my crime but i have a default sentence of 21 months for non payment of Poca coming up which will be 21 months will I only have to serve half of that? If so when would my rotl point be and when released will I have to attend probation or be on licence ? Thanks

    1. You need to take legal advice from a solicitor or barrister, I am an accountant.

      Broadly speaking the provisions for release at the half way point and for release on temporary licence (rotl) operate in a default sentence in the same was as on any other sentence. However release on home detention curfew (hdc or a ‘tag’) is not available to a person serving a default sentence.

      David

  8. My friend is serving a default sentence, during the time the accountant has advised to close down his buisness which have been reopened by another person, how does this work in court as there saying there still trading ? Also his wife is entitled to half off all assests.

  9. My father was sent to prison for an outstanding ammount on his confiscation, his orginal ammount was for 520K with interest at the RPI rate, if he failed to pay a prison term of 3 years was imposed. and he managed to pay 320K of this. With 200k outstanding but the court has added interest to his outstanding ammount and sent his to a term not for his outstanding ammount but this plus more interest as the matter went to the COA and took several months to ressolve. Can they do this.

  10. Hi David

    I have a poca order that has now been settled the available amount has been paid and the benefit amount remains as I don’t have it.

    How long does the Benefit figure last? If you inherit anything later in life can it be confiscated?

    1. Yes, in effect a confiscation order is a ‘life sentence’ in that if you at any time acquire assets the Crown can seek an order that you pay a further sum until the ‘benefit’ has been paid.

      The ‘benefit’ figure is adjusted for changes in the value of money (inflation) so increases over time.

      David

  11. Hi David
    I have been released from a 19 month sentence served 9.5months. I still have POCA case outstanding, the Prosecution will not agree a court time or date. In my accepted basis of plea, in clearly stated I did not financially benefit. The CPS have tried to state I lead a criminal lifestyle, I have proved all of my income over the past 6 years with pay slips and income tax returns, I also have my accountant as a defence witness. My Lawyer has advised me that the CPS are procrastinating as they are aware that they will have to drop the criminal lifestyle due to the amount of evidence I have and witnesses. In the meantime my bank accounts and assets are still frozen, I cannot get on with my life it like serving another sentence. I cannot go for abuse of process until after 2 years from the conviction date. Any advice on this draconian law? if the public only knew that they were living in a dictatorship!!

    1. Without the full details (including the offence of which you were convicted) I cannot say much. It MIGHT be the case that you could get the restraint order modified to permit you to ‘get on with your life’ but frankly I would expect the court to be reluctant to do much whilst a confiscation hearing is pending.

      David

  12. Hi David

    I know that you are not a lawyer, but you appear to be a fountain of knowledge in confiscation matters, so I wonder if you can answer the following question for me. My son was subject to a confiscation order in 2013. He satisfied the order allbeit not within the period allowed. The CPS are now pursuing him for £68,000 interest accrued which he does not have; and are threatening to ask the court to impose a default term if he does not pay. My question is: when did the the power to impose a default sentence solely for the non payment of interest come into force?

    1. Pedro
      Under s12(4) PoCA 2002 the interest must be treated as part of the amount to be paid under the confiscation order.

      To understand how this works imagine this example. John is subject to a confiscation order for £150,000 with a default sentence of 30 Months. He pays the £150,000 but he pays it some years late. By that time interest of £50,000 has been added to the amount. John does not pay any of the interest. The default sentence which can be imposed on John is 10 months – which is 30 months x £50,000 / £150,000.

      David

  13. Hi David
    You seem to be the only place on the Internet to get advice on this.

    My friend is currently serving a prison sentence and is about to go into default on his poca

    His benefit was given as 1.2m which was around 5x the reality.

    They say he has avaliable assets of 120 000. He will only be able to raise around half this so knows he will serve extra time and still owe this on release.

    My question is there is a chance that in the future he may inherit 500 000 – will the court be able to take this. If so does he need to arrange for this relative to change his will to bypass him and go directly to his children.

    1. Sioux
      If the amount due under a confiscation order is not paid on time then interest is added to the amount payable. The interest is calculated at 8% per annum. Your friend should check how much interest has been added so far. Normally the default sentence which he would have to serve would be reduced if part of the amount due had been paid – but if interest has been added he may not get as much reduction in his time in prison on default sentence as he might be expecting. His solicitor may be able to advise him on this in more detail.
      If your friend inherits money in future then the court may take this from him under the confiscation process. It would be wise for the relative to change his will to bypass him.
      David

  14. Hi David, I know that you are not a lawyer, but you nevertheless are a fountain of knowledge in these matters.

    Am I correct in thinking that the power to impose a default term for unpaid accrued interest only came into force in 2015?

    Jackie

    1. Jackie
      I do not think the position with regard to a default term for unpaid accrued interest has changed since PoCA 2002 came into force, see s12 and in particular subsection (4).
      David

  15. Dear David,
    I was given a confiscation order on 13/04/2012. I appealed the said order and the decision was the [2013]EWCA Crim 1052 Judgment. The problems:
    (1) The trial Judge who was the Confiscation proceeding Judge did not include a property which I was found unanimously not guilty of as a property obtained in accordance with section 10 of POCA 2002. The CACD in the[2013]EWCA Crim 1052 Judgment gave no reasons for including the said property as property obtained as a result or in connection with criminal conduct when I was given a Confiscation Order on 29th October 2013. On 29th July 2013, I sought permission from the CACD that: therein the said [2013]EWCA Crim 1052 Judgment there is a point of laws of public importance for the Supreme Court to certify. 0n 29th October 2013, the CACD gave no reasons in the [2013]EWCA Crim 1917 Judgment as to why my Supreme court application was refused. Is all this Lawful?
    (2) On 23rd January 2017 the property ascribed to my value benefit and realisable asset by paragraph 51 to 56 of the said [2013]EWCA Crim 1052 Judgment in the afore mentioned CACD Confiscation order dated 29/10/13 was given to a 3rd party by the High Court Chancery Division. Is all this Lawful?
    (3) Does a court staff who is not a Judge have the Jurisdiction to correct errors in a Confiscation Order and continuously put the same date of issue on the said order?

    1. Hi
      You need advice from a lawyer. I am not a lawyer (I am an accountant).
      Taking the third point first – it appears that the confiscation order was made on 13 April 2012. That is the date of the confiscation order. I understand that the order has subsequently been varied (some of the figures have changed) but the date the order was made remains 13 April 2012.
      With regard to the second point, I would expect that the High Court order of 23 January 2017 has resulted in a reduction in your available amount. You need to talk to a lawyer about now making an application to the Crown Court under s23 PoCA 2002 for a (further) variation to the confiscation order made on 13 April 2012 (with the aim of reducing the amount you are required to pay under the confiscation order).
      With regard to the first point, the confiscation order has already been the subject of an appeal to the Court of Appeal. In preparing for that appeal you were assisted by experienced counsel (Mr Ivan Krolick) who has dealt with a number of significant confiscation cases in the Crown Court, Court of Appeal and Supreme Court. In 2013 the Court of Appeal refused you permission to appeal to the Supreme Court. You appear to have exhausted your rights of appeal in UK courts in relation to the confiscation order.
      David

      1. Dear David,
        I can see from your response that you have done some further research into my case which is welcomed. The High Court Order of 23 January 2017 has not resulted in a reduction in my available amount. I can’t make a section 23 POCA application to the Crown Court in relation to the property of the order of the Chancery Division because when the Criminal Courts (Crown Court and Court of Appeal) considered the evidence of history of financial payments on the property of the order of the Chancery Division: These Courts ascribed the equitable interest of the said property to my Confiscation Order in form of a “value benefit from crime” and being available as a realisable asset (On the internet see [2013]EWCA Crim 1052 at paragraphs 51 -56). Furthermore a s23 POCA 2002 can only legislatively remove a realisable asset and not a value benefit of crime. You rightly stated I was represented by an experienced Counsel and I learnt a lot from him. The drama behind the [2013] EWCA Crim 1052 will be told because the said judgment is hiding some issues but lets take it for what it states. In paragraph 55 (a) of the R – V – Waya Judgement ([2012] UKSC 51available on the internet) therein it is stated: “once a property has been obtained as a result of or in connection with crime, it remains the Defendant’s benefit whether or no he retains it”. In your research you accurately gathered my Confiscation Order was varied on 8th January 2016 by HHJ Pawlak of Woodgreen Crown Court. I am sure the information you received would have told you that a Gold Rolex Wrist Watch listed as realizable asset 10 in my said Confiscation Order led to the variation on 08/01/2016. The value of the Gold Rolex wrist watch was also included in the “value benefit of crime” by the criminal courts referenced above. The CPS affirmed in open court that the said Rolex Wrist watch disappeared from the custody of the Metropolitan police hence the reduction in realisable assets on 08/01/2016 by HHJ Pawlak. Legal definition of theft is: “dishonestly appropriating a property belonging to another with the intention of permanently depriving the other of it”. That means the Gold Rolex Wrist Watch was stolen by a person or persons in the Metropolitan Police Force. I am sure you will agree with me that the Proceeds of Crime Act 2002 was not brought into legislation for a person or persons in public authorities to “enrich” themselves. Clearly from these submissions and your research you can see that my confiscation order is not in accordance with the R -V- Waya Judgement and the principles of the POCA legislation. With regards to exhausting the right of appeal in the UK, I refer you and public at large to the [2015] EWCA Crim 2002 judgment at paragraph 18 line 8 were the Court of Appeal Criminal Division state: “it has an implicit power to reopen a concluded appeal in exceptional circumstances , where it was necessary to achieve its two principal objectives, correcting wrong decisions and ensuring public confidence in the administration of justice”

        I look forward to your response
        Kind Regards
        F Oyebola

        1. Starting with your final point concerning a re-opening of the previously concluded appeal to the Court of Appeal, Criminal Division, I would draw your attention to R v Yasain [2015] EWCA Crim 1277. You could ask the Criminal Cases Review Commission to look at your case. They might decide to take the case back to the Court of Appeal. In the absence of that, and in the absence of some sort of procedural irregularity (such as failing to notify the defendant of the date of a hearing, resulting in him failing to attend or be represented at the hearing) it is difficult to see that you have any appeal options left in the UK courts.
          What you seem to be saying is that the Appeal Court came to the wrong conclusions when it considered the evidence and the law – and that you have suffered an injustice as a result. I am not a lawyer, but I do not think that would be regarded by lawyers as sufficient grounds to return to the Court of Appeal and ask them to reopen your appeal (which has previously been heard by them and concluded).
          With regard to an application under s23, I was not suggesting such an application would or could affect your benefit figure. What I was suggesting was that an application under s23 could affect the amount you are obliged to pay under the confiscation order. That would be achieved by reducing the figure of your available amount. The value of the property in question would continue to be an element in the benefit figure, but could be excluded from your available amount. If that resulted in a reduction in your available amount then that, in turn, could lead to a reduction in the amount you are required to pay (and possibly a reduction also in the default sentence). I would advise you to see a lawyer to discuss this further.
          David

          1. Dear David,
            I thank you for the reply of 27 February 2017, in view of the fact that you are not a Lawyer, your commonsense approach to the matter I state is valuable. On the Criminal Cases Review Commission the least said the better. Bringing that body in to this forum will pollute the debate. Moving on to the s.23 POCA application you referenced in your response to remove the equitable value of the property which the order dated 23/01/2017 of the High Court Chancery Division state I don’t have an equitable interest but the judgement of the Court of Appeal Criminal Division (paragraph 51 – 56 [2013] EWCA Crim 1052) state I do have an interest. The issue is this: If a person Knows or believes that an order or judgment of a Court is wrong then that person cannot use the said judgement or order in any other way than his/her belief or knowledge. The bigger picture I believe is this. The R – V – Waya judgement concludes that when the value benefit of a confiscation order is erroneously applied then that said confiscation order is not proportional and has given an effect to a violation of A1P1 (Article 1 Protocol 1 of the european convention on human rights). On reading the R v Yasain [2015] EWCA Crim 1277 judgement the Court of Appeal Criminal Division has to amend its error in paragraph 51 – 56 [2013] EWCA Crim 1052 judgment due to the order of the High Court Chancery Division dated 23/01/2017. I agree with paragraph 2 of your response but its Highly likely I will do the application as a litigant in person.

            I thank you for your audience

            Kind Regards

            F Oyebola

  16. My son went for his appeal on conviction and lost he was given an extra 52 on to his sentence will he have to serve half of that like normal? Can anyone help thanks

    1. Your son should speak to the solicitor or barrister who assisted him in presenting his appeal. Alternatively the prison should be able to tell him his new release date. I am an accountant, not a lawyer. My understanding is that his new release date would be 52 days later as a result of a ‘loss of time’ order of 52 days under s29 Criminal Appeal Act 1968, but he should check with his lawyers or the prison.
      David

  17. hi i have a confiscation order made againts me on the 2nd February 2015, i am currently in default, this is a complex matter as a realisable assets a family home with my mother a 50% share holder and my wife has a third-party interest Claim. the available amount was £245k. minus £83k sized by police. which leaves £162k,initially at court on the above date i did not agree with the above realisable amount but there was a confusion with the instruction by my barrister and the order was made. i am enable to satisfy the order because my mother does not want to sell and my wife is claiming third-party interest on my share of 50%, i have been paying £100 pounds a month towards the order. i am trying my best what do i do. can you please explain a default term is treated as a punishment even when a person has tried in every way possible. and what is the area of law. Thank you.
    Iron Miah

    1. You need legal advice from a solicitor or barrister (I am an accountant, not a lawyer).
      That legal advice may include reference to the case of R v Modjiri [2010] EWCA Crim 829 and to the provisions of s23 PoCA 2002.
      It is not the case that where a sum has been ordered but has not been paid that the Magistrates’ Court will automatically activate the default sentence. The Magistrates will have to consider whether sending you to prison would be the right thing to do in all the circumstances.
      David

  18. Hi david. My partners poca was last week the prison service never sent the van to collect him on 2 occasions on the 3r occasion they dealt with it without him being there they ordered him pay 41k but saying they want 8500 and owe the rest does he have the right to appeal this as he was not present… And do you need grounds for a appeal thanks

    1. The Court should have decided a benefit figure, an available amount figure and an amount to pay. Payment might be required immediately, or all or part of the payment could be delayed by up to 3 months (initially).
      The court should not have made the order without him being there unless he had refused to attend or he had agreed to the court making the order in his absence.
      He should talk to his solicitor or barrister about an appeal straightaway. The appeal forms have to be submitted to the court within 28 days of the date the court made its order.

  19. Hi iv recieved a poca with 3 month to pay I have the funds but it’s going to take like 4-5 month am I entitled to have a extension to 6 month

    1. Talk to your solicitor. You need to apply to the Crown Court for a further 3 months. You can do that now if you are able to show good reason why it will take longer than 3 months to pay. Don’t wait until the 3 months are up.
      David

  20. Hi, my partner is having difficulty in ascertaining if Scottish law is different to English law in regards to proceeds of crime. He has a poc order for 30,000 and has been told an ( up to 18 months ) prison sentence will clear the debt in Scotland. 2 lawyers have given him m different advice regarding this. His court date is in 2 weeks can you help. Thank you

  21. hi,
    my ex husband served a 1 year default sentence in 2008 for sum of 170,000. he now lives in a council flat and i still live in the family home payin just the interest on the mortgage, live with 3 children, one is disabled, there is about 20 thousand equity in the home but vast amount owed to mortgage company, my ex has received this week a review of his earnings to see if he can pay back more off the confiscation, he currently pays 100 pounds a month, my question is can i as a named joint owner of the family home be forced to sell even though the amount available would be small.
    thanks
    rebecca

    1. Rebecca
      You need to talk to a solicitor about this. I am an accountant not a solicitor. For what it’s worth, my understanding is that (in England and Wales) you could be forced to sell the house. However there may be other solutions open to you which would avoid that happening, for example you could buy your husband’s share in the house if you could get the £10,000 to pay him what it is worth (and if the mortgage lender would agree to you doing that).
      David

  22. if some one is released from prison with a POCA of£1million and no funds he cannot pay. However he now gets a job and takes a mortgage out say interest free to buy a property for £100,000 and 5 years later sells it for a profit for £40,000 ie £140,000 . What happens to the balance -Does POCA have rights over it or can that go to the individual for living. If POCA take then its worthless buying a property, but no one seems to know the answer

    1. Andrew
      I would not recommend a person in this situation to buy a property (or indeed any other asset of value).
      The position is that the Crown can apply to the court (at any time) under s22 PoCA 2002 to have the court consider the defendant’s current available amount and order him to make a further payment under the old confiscation order.
      If the CPS somehow got to know that someone with a confiscation order had sold a property (and it is straightforward for them to find out) then they may well make an application under s22.
      David

  23. In 2007 my husband was sent to prison for cannabis also paid 10, this year he was told he was going to court as the poca unit was ordering a variation order after 10 months of waiting he was given three months to pay £15,000. He has no job no income I’m working but we barely survive, I did buy my council home at a big discount several years before all this. Can they force me to sell my home? The bank will not let me borrow or re-mortgage even though I only owe £13 000 on my mortgage, please help

    1. Victoria
      I would need more details to be able to advise you properly. On the face of it, the order requires your husband to pay – not you. The likelihood is that if he does not pay on time then interest will be added to the amount due. He may ultimately be at risk of going back to prison if the order remains unpaid. The court usually specifies a “default sentence” – he would have to serve half of that inside.
      Whether the court can force the sale of the house depends on a few things. The first is who owns it – you, him or both of you?
      The second is whether the court has decided that he has made any gifts to you.
      If you are worried you might be able to get an initial free interview with a solicitor, or your husband’s lawyers (who dealt with the variation) may be able to help, or you may get help from a Citizens’ Advice Bureau.
      David

  24. I have a POCA order against me. £76K Originally. Got it varied down to £59K also default sentence changed from 12 to 9 months..I paid £33K off or 61%. Remaining balance tainted gift accepted at crown crt by Judge that I had done all that could be reasonably expected of me to get the money/assets back from ex GF in Romnainia. Also commented that “I should not be punished further for this amount outstanding” Now at enforcement hearing…Iv just finished 6 year sentence…3 months out from prison…cant get job and im living off universal tax credits. I have no money or assets to sell and no family or friends that will lend me the money has district judge at enforcement hearing suggested I should try and borrow money off of to pay fine!! Iv asked my son and duaghter…they have said wont help me pay a debt that caused them top go into care!! I have no one to turn to…Judge said I would have to pay £50 per month for 3 months then a further hearing to see if my financial position improves and to give me more time to think seriously how I pay the amount outstanding!!! My position will not improve over such a short period of time maybe over a period of 3-6 years it may do!! My question is where do I take this next? Am I to be punished for being poor? Max default sentence now after previous payment is 3 months or 45 days inside time!! Im barley able to live on the bennfits im receiving…yet they want me topay £50 for next 3 months which I can not afford to do…but the interest alone is £5.90 per day….what are my realistic options with the court…is it better to just serve default sentence of 45 days so that’s not hanging over my head anymore…im told that I cannot be put back in prison for the amount owed again…is this true? So is just serving the default sentence an option? even though I still owe the money I cant be put back in prison for it!! Im also needing bankruptcy coz I owe the banks £250K credit card and overdraft debts!! so im not in a position to pay anyone…this is madness…what are my options?

    1. Hi Chris
      You should speak to a solicitor. I would expect you would be eligible for assistance under Legal Aid. The default term calculation should be based on the amount outstanding EXCLUDING ANY INTEREST. The idea of the threat of the default sentence is to encourage you to pay what you can. It seems you have already done that, so the threat won’t work in your case. Get advice from a solicitor.
      David

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