The Law Gazette
Alan Sheeley, the firm’s head of civil fraud and asset recovery, said: ‘Too often asset recovery by the authorities is woefully inadequate and never the primary focus. It is plagued by unnecessary delay and poor coordination.’
He added that cases were ‘frequently investigated and prosecuted without due consideration for how a confiscation order would ultimately be enforced – leaving the victim empty-handed and reeling from the losses it has suffered’.
The select committee’s recommendations included earlier action to freeze assets; action on non-payment of confiscation orders; and for a lead crime agency such as the NCA to lead co-ordination of asset recovery exercises.
But some lawyers have serious reservations. Michael Roach, associate in WilmerHale’s white-collar crime team, said: ‘The creation of a separate criminal offence – failing to pay a confiscation order [proposed by the select committee] – is unnecessary. The Serious Crime Act 2015 has already increased the maximum default term available for failing to pay a confiscation order to fourteen years.’
The 2015 act also ended automatic release halfway through prison terms relating to non-payment of confiscation orders over £10m. Roach added: ‘Given the existence of these already severe default provisions, it is difficult to see the case for a separate criminal offence.’
The proposal that the new offence be enforced by not allowing criminals to leave prison without having satisfied their confiscation order, Roach said, ‘is draconian in the extreme, offending against basic legal principles and potentially violating human rights’.
There was greater consensus over a proposal for specialist confiscation courts and more financial training for police forces.
But policy disagreements are not the only problem faced by the Home Office if it backs the committee’s recommendations. Edmund Smyth, solicitor in the criminal litigation team at Kingsley Napley, told the Gazette: ‘The strain on resources within state agencies is a serious obstacle to more effective enforcement and while the committee recommends the creation of a market for private enforcement, it is difficult to see how this can achieve improvements in practice.’
Nor will the suggested scheme to allocate funds to the community through charities ‘effectively incentivise the currently tasked agencies to step up their enforcement efforts,’ Smyth argued. ‘Given the serious problems that the report identifies and the history of previous attempts at reform, it is hard to be optimistic that the POCA regime will ever be truly fit for purpose.’
