Under the Proceeds of Crime Act the prosecutor and court will consider whether the convicted defendant has a criminal lifestyle (section 75 POCA), has benefited from general criminal conduct or has benefited from particular criminal conduct.
The potential amount of a Confiscation Order will be a consideration, as the greater this amount the more likely it is that the court will be required to carry out a confiscation inquiry. Even in cases where there does not seem to be any assets to satisfy an Order at this stage there will be many cases where the Crown asks the court to make a nominal Order so that the prosecutor may apply at a later date to increase the sum that should be paid.
The Crown should also consider the feasibility of enforcing a Confiscation Order if one were to be made. Some possible scenarios where a Confiscation Order may not be pursued would include where the defendant had been declared bankrupt, or if a victim of the defendant’s had taken civil proceedings and frozen the defendant’s assets. Just because the court may be asked to make a Compensation Order may not affect the decision to bring confiscation proceedings as compensation can be paid out of sums realised under a Confiscation Order.
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