Brian Swan writes in The Times re criminals paying back ill-gotten gains or returning to prison

Partner Brian Swan discusses why the recent proposal from the law commission, that criminals must pay back their ill-gotten gains or face returning to prison, is unfair, in The Times.

Brian’s article was published in The Times, 1 October 2020, and can be found here.

The Law Commission has proposed additional powers be provided to recall released prisoners if they have not paid their confiscation order. Such measures would ensure convicted defendants pay their confiscation orders and prohibit them benefiting from their crime.

These proposed powers are unfair; the purpose of releasing a prisoner on licence is to monitor and reintegrate the prisoner back into the community and prevent re-offending. To use this as a tool to ensure payment of a confiscation order fails to take into account that there is already provision for those who do not pay their confiscation orders to be sent to prison for non-payment.

When a confiscation order is made, a period of imprisonment is attached, and that default sentence can be activated, consecutive to the sentence given for the underlying offence. This occurs when the Enforcing Court determines that the defendant wilfully neglected to pay the order. Those who “wilfully neglect” to pay their orders are already at risk of receiving further terms of imprisonment.

In making a confiscation order, the judge determines the period in default based on its value. A mechanism is set out in the existing regime for imposing further imprisonment in the event of non-payment. To recall a defendant for a period of their licence when they have already served a sentence for non-payment would, effectively, punish them twice for the same act.

Furthermore, there are mechanisms in place that allow the Crown to apply to the Court to appoint a receiver of any known assets of the defendant.

There are various reasons why original orders are not paid in full: assets sold may not have realised their true value, or they may be subject to third-party interest, thereby preventing the defendant from being able to sell the assets, even if they wanted to. To punish a defendant in circumstances where non-payment is beyond their control is unfair.

It should be borne in mind that when an order is made, the burden is on the defendant to show they do not have the means to pay it. Defendants who face confiscation proceedings are often disbelieved at trial and may be seeking to prove a negative. Consequently, a tribunal could reach a decision and make an order on the basis the defendant lacks the credibility to discharge the burden of proving they cannot pay a particular sum. This would result in orders being made which the defendant cannot pay. Simply, because a defendant has been ordered to pay an amount does not mean they have that money available.

Notwithstanding the above, the recommendation to limit interest is a power the court should have. In some cases, defendants can never pay an order since the interest can, depending on the order’s amount, exceed a defendant’s capacity to pay. Having the ability to limit or freeze interest should therefore be at the court’s discretion.