Proceeds of crime

A restraint order is obtained in order to preserve a suspect/defendant’s assets until a confiscation order is paid in full.  It can be obtained from the Crown Court at any time from the start of an investigation.  A restraint order can also be obtained to preserve assets for reconsideration applications and when obtaining confiscation orders against absconded defendants.

CPSPOC can apply to the Crown Court for the appointment of a Management Receiver in cases where the assets being preserved need to be actively managed. If granted, a Management Receiver will be given certain powers to allow him/her to manage the assets of the defendant to maintain their value. This can include being given power to sell the assets to stop them reducing in value. The Management Receiver is paid from the assets that he/she manages.

A confiscation order is an order of the Crown Court which requires a convicted defendant to pay a sum of money to HMCTS immediately or, if he/she shows that he/she needs time to pay it, within a fixed period of time (initially limited to a maximum of 3 months, which is extendable to a total of 6 months).

An application for a confiscation order is considered as part of the sentencing process. The Crown Court will determine the defendant’s benefit from their offending - this is calculated by reference to the value of the property or financial advantage that a defendant has obtained from his criminal conduct.  It can also extend to assets other than those relating to the offence for which the defendant is convicted subject to certain qualifying criteria being met.

The Crown Court will also determine the available amount - this is calculated by reference to the value of the defendant’s realisable assets less any payments that take priority over a confiscation order and any tainted gifts made by him/her.

The defendant will be ordered to pay the benefit from his/her criminal conduct unless he/she can show that some or all of it is no longer available.  If he/she can do so, he/she will be required to pay the available amount.

The Crown Court will also fix a period of imprisonment to be served if the defendant fails to pay the confiscation order. The length of the sentence is fixed by reference to the amount of the confiscation order. This is called the ‘default sentence’.

If the defendant’s assets realise less than the amount of the confiscation order, he/she can apply to the Crown Court for a reduction of the order. He/she must show that his assets are not sufficient to pay the order. The court will take into account all of his/her assets at the time of the making of the application including any that he/she has obtained after the making of the order. However the court will not take into account any insufficiency that he/she causes to stop the order being paid.

If the value of the defendant’s available amount is less than the benefit from his/her  offending and it is subsequently discovered that he/she has further realisable assets, a prosecutor can apply  to the Crown Court for an increase in the amount of the confiscation order.

A confiscation order is payable to the magistrates’ court. His Majesty’s Courts and Tribunal Service is ultimately responsible for collecting the debt owed by a defendant on a confiscation order.

CPSPOC takes responsibility for enforcing the most complex confiscation orders, which require the use of powers available to a prosecutor. CPSPOC becomes the lead enforcement agency for the confiscation orders we enforce.

The vast majority of confiscation orders are enforced by HMCTS using the powers available to the magistrates’ court as they are less complex and, therefore, do not require the use of powers available to a prosecutor. HMCTS becomes the lead enforcement agency for the orders they enforce.

When enforcing a confiscation order CPSPOC will engage with the defendant (or their representative), the police, financial institutions, estate agents and others in order to assist the defendant to pay the order.

If a defendant fails to pay his/her confiscation order, the magistrates' court will consider why this has happened and whether to order him/her to serve the default sentence. For confiscation orders made after the 1st November 1995, serving the default sentence will not wipe out the amount owed by a defendant.

 The CPSPOC can use other methods to collect the amount owed. CPSPOC can apply to the Crown Court for the appointment of an Enforcement Receiver. If granted, an Enforcement Receiver will be given certain powers to allow him/her to sell the assets of the defendant and pay the order. An Enforcement Receiver in an independent officer of the court and is not part of the prosecution team.

The proceeds of crime can be recovered in civil proceedings in the High Court against property which can be shown to be the proceeds of crime.

Civil Recovery can be used when it is not possible to obtain a conviction or a conviction is obtained but a confiscation order is not made or the public interest will be better served by using civil recovery rather than by seeking a confiscation order. This will include where suspects have gone abroad to escape an investigation or the offending has taken place overseas so it cannot be prosecuted in UK courts.

The CPS can apply for a freezing order to preserve the assets until a civil recovery order has been made.

The CPS can also apply to appoint an Interim Receiver where the assets for civil recovery need to be investigated. The Interim Receiver has power to preserve the assets whilst he investigates them.

Organised crime works across borders and criminals often hide assets overseas.

The CPS works to recover assets from overseas. We can preserve and recover assets overseas with the assistance of the overseas authorities.

CPSPOC can also assist overseas authorities to recover assets in the UK for criminals being prosecuted in those countries.

The CPS has lawyers based overseas with expertise and experience in asset recovery in order to work in partnership with overseas authorities to recover assets.