Confiscation Orders: A Guide to Their Making and Enforcement
| Author | Kennedy Talbot Barrister,Martin Hinton |
| DOI | 10.1177/002201839105500406 |
| Published date | 01 November 1991 |
| Date | 01 November 1991 |
CONFISCATION
ORDERS:
A
GUIDE
TO
THEIR
MAKING
AND
ENFORCEMENT
Kennedy Talbot Barrister
Martin Hinton BA (Jur)
LLB
(Hons)
LLM
INTRODUCTION
The confiscation of the proceeds of crime by the Crown is by no
means a new phenomenon, albeit that the courts have been denied
such power since 1870.IIn more recent times Parliament has once
more acted to encroach upon the bank balances of profit-minded
defendants. Restitution and compensation orders are examples of
Parliament's efforts to right the balance," whilst forfeiture orders
took from the defendant only those accoutrements of hisoperation
utilised in the commission of the very offence with which he stood
charged.' Concern over drug use and drug addiction in the 1980s
saw prosecutors attempt time and again to stretch the application
of forfeiture orders to encompass the profits earned by defendants
from such enterprise. However, time and again it was judicially
stated that the latter type of order, made under s 27 of the Misuse
of Drugs Act 1971, could not operate to permit the seizure by the
Crown of money believed to be a trafficker's working capital, nor
ISee Yorke, Forfeiture (4th ed, 1975) p 69: Viner's Abridgment (1st ed, vol 13,
1742) P 446. The passing of the Forfeiture Act in 1870 swept away the prerogative
right of the Crown to seize the entire estate of a convicted felon. Prior to the
existence of this Act, forfeiture was not limited to the felon's ill-gotten gains for it
was considered a natural consequence of his failing in his obligation to society that
all he possessed enure to the Crown so as to deter others from criminality.
2Restitution-s-see s 28 of the Theft Act 1968;
compensation-see
s 35 of the
Powers of Criminal Courts Act 1973 as amended by s 67 of the Criminal Justice
Act 1982 and s 104 of the Criminal Justice Act 1988.
3
Forfeiture-see
s 27 of the Misuse of Drugs Act 1971; s 43 of the Powers of
Criminal Courts Acts 1973.
504
Confiscation Orders: Making and Enforcement
his profits." Only that money shown to be the proceeds of the
offence with which the trafficker stood charged could be seized."
The
frustration mounted for those wishing to strip the defendant
of his illicit gains and was brought to a head as a consequence of
the decision in Cuthbertson. 6
As a result of the success of 'Operation Julia' Cuthbertson and
others were charged and later pleaded guilty to conspiracy to
supply a Class A controlled drug. Consequently the defendants
were ordered to serve sentences of imprisonment and subjected
to an order of forfeiture, pursuant to s 27 of the Misuse of Drugs
Act 1971, in an amount equal to the total value of their assets for
it was considered that such assets represented the proceeds of
their criminal enterprise. This forfeiture order reflected the
Crown's success in arguing that the words 'anything shown
...
to
relate to the offence', as contained in s 27, were to be interpreted
as widely as possible, thereby permitting the proceeds of previous
drug trafficking, not charged, to be forfeited.
In the House of Lords the defendants appealed against the order
of forfeiture on the grounds, inter alia, that s 27 could only
facilitate the forfeiture of those assets and monies used by the
defendants in the commission of the specific offences of which
they are convicted.
Despite their Lordships' desire to see the defendants relieved
of their wealth, a desire fuelled all the more by the fact that it was
admitted that such wealth had come to the defendants as a direct
consequence of their trafficking in drugs, it was held that such
action could not be justified within the ambit of s 27 of the Misuse
of Drugs Act 1971.
The
social justification for seeking the forfeiture of the proceeds
of crime was never questioned, rather, it was impliedly accepted
as a course of action which should, in principal, follow conviction
as a matter of course. Nevertheless, the hands of the Law Lords
were tied, hence the words of Lord Diplock:
4R v O'Farrell [1988] Crim LR 387; R v
Simms
[1987]Crim LR 186.
5Under s 43 of the Powers of Criminal Courts Act 1973 a trafficker's working
capital can be forfeited on the grounds that he intends to use it for the purposes
of committing further criminal acts, however, this still leaves the defendant to
enjoy the profits of his criminal enterprise.
6R v Cuthbertson (1981] AC 470; (1980]2 All ER 401.
505
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