The Proceeds of Crime Act can bite hard. I accept the basis presumtion that the law is there to ensure that Crime does not pay, but as will be illustrated in this brief summary, it has become an unjust and inequitable law that punishes unfairly and sentences a Defendant all over again.

      Before I address the specific matters which trouble me, let me firstly tell you what the bare bones of the Act amount to.

       A Confiscation Order does mean exactly what it sounds like. We are not talking about confiscationg property as such, as the Court is looking at the BENEFIT received. It asecertains what that benefit amounts to in financial terms, and thenorder a sum of money to be paid to reflect that BENEFIT.

     The Prosecution are able to indicate their intention to proceed under the Proceeds of Crime Act whenever and wherever it is clear that a Defendant has derived a financial benefit from a crime of which he has been found guilty.

      So there we have it. The first question is - Has the Defendant benefited financially?

     The next rather more complicated question is whether the Defendant is found to have a CRIMINAL LIFESTYLE. Under the Act, he does have such a lifestyle if he has been found guillty of certain criminal offences eg trafficking, brothel keeping etc. If the offence in question is referred to in that Schedule wiothin the Act, then he definitely does have a CRIMINAL LIFESTYLE.

Similarly under the same section of the 2002 Act (Section 75), if he has committed three or more offences in the current proceedings each of which constitutes conduct from which he has benefited financially, he is held again to have a CRIMINAL LIFESTYLE.

Lastly if it can be established that the offence "constitutes conduct forming part of a course of criminal conduct, then there is once again CRIMINAL LIFESTYLE. This is the case where he has been found guilty of such an offence on at least two separate occasions in the six years before the current proceedings were started even where any of those offences were committed before the ACt (24th March 2003.)

In respect of these last two headings, the offender must have obtained RELEVANT BENEFIT of not less than £5000

Lastly, again there is proven CRIMINAL LIFESTYLE where an offence was committed over a period lasting no less than six months. This is a question of fact and not solely dependent upon the wording of the charge.

If a Defendant has a CRIMINAL LIFESTYLE, the Court is then able not just to look at the PARTICULAR CRIMINAL ACTIVITY (i.e. that of the offence or offences with which he is currently charged) but at his GENERAL CRIMINAL ACTIVITY.

GENERAL CRIMINAL ACTIVITY spells trouble for the Defendant for a number of specific reasons which will shortly be clear.

The Court is able to go back as far as it wants. There are no time constraints. Even more troubling is the fact that there are what are known as STATUTORY ASSUMPTIONS which are applied to any case where the Defendant has been held to have a CRIMINAL LIFESTYLE. These ssumptions are made by the Court and relate to the source of monies, property and expenditure in the previous six year period. In other words, the onus shifts to the Defendant in effect to prove otherwise. I shall return to this shortly

So there we have it:

Has the Defendant benefited?

Does he have a Criminal lifeestyle?

It is therefore a question of considering THIS particular criminal activity and the benefit derived or can in this instance the Court go back as far as it wants?

Most importantly, do the Assumptions "kick in"?

The fact is that at the end of this often lengthy process, the Court must fix a figure in assessing the benefit. This is the ASSESSED BENEFIT. But then the Court must accept it cannot get the proverbial blood out of a stone and it must next fix the AVAILABLE BENEFIT. This is the sum in cash which the Defendant is actually ordered to pay.

The next question is - what happens if he doesn't pay? There is then a default sentence which is fixed by Statute. It is serious and draconian (severe) measure. I will again return to this issue shortly.

So in effect, pay up or else serve another prison sentence (up to 10 years no less!) But the real further fly in the ointment is this. If you do nnot pay, and you are imprisoned, when you are released, you still owe the money and the accumulated interest.

It may already be clear why I and many academics believe the current law is grossly unfair. Let me give you some reasons why I am unhappy with the current Act.

The very notion that the onus of proof should rest upon a Defendant to prove his innocence is itself repugnant. What is however even more troubling is the fact this particular Defendant has already been convicted of a serious criminal offence and therefore is far less likely to be believed. It is in effect a double whammy - so to speak. Having already been convicted, he is now possibly going to face another sentence.

The basis approach is that a convicted criminal should be treated like a piece of meet, or rather a llamb to the slaughter. Who is really going to take up his cause?

The reality of this situation is seriously unjust. It can and does often work like this.

A person commits a serious offence. He has no previous criminal record but because of the nature of his offence, he is held to have had a criminal lifestyle. In the circumstances, his finances over the course of his lifetime are up for grabs and scrutiny.

So as he sits in his prison cell haviung been convicted a received his first and only prison sentence, there is a knock on his call door and the claim for confiscation begins. In a state of absoluyte turmoil, he is asked to answer complex alegations dealing matters that go back years and years. His papers and receipts are somehere in the house, but he is contained in his pad. He is depressed, confused, annoyed and alone. It is against this background that he is asked to answer every alegation raised by the Prosecution. Everything they say is presumed to be true and correct UNLESS this poor Defendant can prove otherwise. Now that isn't justice.

I am appalled at this injustice and I am calling for urgent review of the legislation. My heart goes out to anyone trapped by the system. A great idea in principle but with very cruel implications for anyone who in truth had no actual criminal lifestyle at all. Great British Justice is at stake and is plainly also at risk. 

For more assistance, guidance and advice go to: www.confiscationproceedings.co.uk