CONFISCATION ORDERS – ENFORCEMENT
In brief, a court making a confiscation order will always order a sentence of imprisonment “in default of payment”, and order that the amount be paid by a certain date.
If the imprisonment “in default” is served, consecutively to the sentence for the offence(s), the prisoner still owes the money – but the Magistrates cannot impose further terms of imprisonment in default.
However, there are various other ways of enforcing the “recovery” of the amount – for example “receivers” can be appointed to find and seize assets.
Defence of enforcement proceedings is highly technical.
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POCA Section35. Enforcement as fines
[as amended by the SCA 2007, ss.74(2) and 92, Sched. 8, paras 1 and 19, and Sched. 14.]
(1) This section applies if a court –
(a) makes a confiscation order, … .
(2) Sections 139(2) to (4) and (9) and 140(1) to (4) of the Sentencing Act (functions of court as to fines and enforcing fines) apply as if the amount ordered to be paid were a fine imposed on the defendant by the court making the confiscation order.
(3) In the application of Part 3 of the Magistrates’ Courts Act 1980 to an amount payable under a confiscation order –
(a) ignore section 75 of that Act (power to dispense with immediate payment);
(b) such an amount is not a sum adjudged to be paid by a conviction for the purposes of section 81 (enforcement of fines imposed on young offenders) or a fine for the purposes of section 85 (remission of fines) of that Act;
(c) in section 87 of that Act ignore subsection (3) (inquiry into means).
Powers of Criminal Courts (Sentencing) Act 2000, ss.139, 140, 142
Miscellaneous powers and duties of Crown Court in relation to fines etc.
139. Powers and duties of Crown Court in relation to fines and forfeited recognizances
(1) Subject to the provisions of this section, if the Crown Court imposes a fine on any person or forfeits his recognizance, the court may make an order –
(a) allowing time for the payment of the amount of the fine or the amount due under the recognizance;
(b) directing payment of that amount by installments of such amounts and on such dates as may be specified in the order;
(c) in the case of a recognizance, discharging the recognizance or reducing the amount due under it.
(2) Subject to the provisions of this section, if the Crown Court imposes a fine on any person or forfeits his recognizance, the court shall make an order fixing a term of imprisonment or of detention under section 108 above (detention of persons aged 18 to 20 for default) which he is to undergo if any sum which he is liable to pay is not duly paid or recovered.
(3) No person shall on the occasion when a fine is imposed on him or his recognizance is forfeited by the Crown Court be committed to prison or detained in pursuance of an order under subsection (2) above unless –
(a) in the case of an offence punishable with imprisonment, he appears to the court to have sufficient means to pay the sum forthwith;
(b) it appears to the court that he is unlikely to remain long enough at a place of abode in the United Kingdom to enable payment of the sum to be enforced by other methods; or
(c) on the occasion when the order is made the court sentences him to immediate imprisonment, custody for life or detention in a young offender institution for that or another offence, or so sentences him for an offence in addition to forfeiting his recognizance, or he is already serving a sentence of custody for life or a term –
(i) of imprisonment;
(ii) of detention in a young offender institution; or
(iii) of detention under section 108 above.
(4) The periods set out in the second column of the following Table shall be the maximum periods of imprisonment or detention under subsection (2) above applicable respectively to the amounts set out opposite them.
Table
An amount not exceeding GBP200 7 days
exceeding GBP200 but not exceeding GBP500 14 days
exceeding GBP500 but not exceeding GBP1,000 28 days
exceeding GBP1,000 but not exceeding GBP2,500 45 days
exceeding GBP2,500 but not exceeding GBP5,000 3 months
exceeding GBP5,000 but not exceeding GBP10,000 6 months
exceeding GBP10,000 but not exceeding GBP20,000 12 months
exceeding GBP20,000 but not exceeding GBP50,000 18 months
exceeding GBP50,000 but not exceeding GBP100,000 2 years
exceeding GBP100,000 but not exceeding GBP250,000 3 years
exceeding GBP250,000 but not exceeding GBP1 million 5 years
exceeding GBP1 million 10 years
Cases on fixing the default term: –
R. v. Price (Simon) ([2009] EWCA Crim 2918),
R. v. Pigott (Stephen Michael) ([2009] EWCA Crim 2292)
