07/02/2022
Police Oracle
Work with offenders on controversial practice
As criminals become more sophisticated and ‘organised’ in the way they conduct their business and in an ever-increasing global market law enforcement agencies across the world have felt the need to develop more effective ways of making sure that crime doesn’t pay. Many police services were frustrated at their inability to get to the people who were organising and running drug trafficking; the people who were making millions seemed to be able to get off leaving the vulnerable frontline dealers as the ones who were arrested and imprisoned.
The Proceeds of Crime Act
The Proceeds of Crime Act (POCA) provides specific powers aimed at depriving criminals of their ‘ill-gotten gains’. This piece of legislation is a synthesis of various provisions that were previously situated across various laws. The ideology that underpins the Proceeds of Crime Act 2002 is that no criminal should be able to enjoy a luxurious lifestyle via the proceeds of crime, a principle that most people would consider axiomatic.
POCA policy documents discuss a number of objectives that help ‘legitimise’ confiscation practice. They include: to deny criminals the pleasure of their ill-gotten gains; to disrupt criminal enterprise; to deter future criminality; and to reassure the public that crime does not pay. The rhetoric that has surrounded the introduction and the continuing development of confiscation legislation has professed to target the ‘Mr Bigs’; those at the top of the criminal hierarchy.
Who does it target?
After a defendant has been convicted, a “confiscation order” can be made as part of the sentencing process. A confiscation order is made personally against a defendant to pay a sum of money equivalent to some or all of their benefit from crime, depending on the assets available to the defendant. They are not obliged to realise any particular asset to satisfy the order, as long as the sum of money is paid.
Over the years confiscation legislation has come under increasing scrutiny due to its failure to catch those at the top; the majority of confiscation orders are for amounts less than £10,000 which hardly conjures up images of ‘Mr Big’. At the end of 2020, the Law Commission (the independent law reform body in England and Wales) published a consultation paper on post-conviction confiscation under POCA. The Commission acknowledged that confiscation orders can be unfair. When the benefit amount is not calculated accurately, a defendant is left with an order which does not reflect what they gained from crime. This can have serious impacts. If a defendant does not pay, they may have to serve a default term of imprisonment. Currently, a confiscation order has no end point and accrues a high rate of interest. This leaves some defendants paying off their order slowly and for a long time, using legitimate earnings. This can hamper their rehabilitation, indeed the confiscation regime may perversely disincentivise rehabilitation, coursing individuals back into offending to make the money they need to pay off a confiscation order.
POCA and problem gamblers
Recently, new evidence has emerged from the Commission on Crime and Problem Gambling led by the Howard League that POCA is now being targeted at people whose offending is driven by their problem gambling. Sometimes people become so entrenched in a gambling habit that they commit a series of (sometimes serious) crimes to gain money to fund their gambling. However, the proceeds of these crimes almost always go on feeding their addiction. In contrast to Organised Crime Groups (OCGs) who are buying property and assets from their illegal profits, most gamblers simply lose the money they have stolen back to the betting companies or Casinos. Problem gamblers are normally in huge amounts of debt and simply do not have the realisable assets which POCA is supposed to target. Problem gambling is typically hidden from family members who may be “collateral” victims if the home they live in and other family assets have to be sold.
In its submission to the Law Commission consultation, the Howard League noted that banks and gambling operators are sometimes complicit. Indeed, in many cases of fraud perpetrated to fund a gambling addiction or problem, victims of the crime have received compensation from gambling companies following investigations by the Gambling Commission for social responsibility and money laundering failures.
POCA seems to be another example of how law-makers intentions are not always followed in practice.