There are proposals to extend the Confiscation regime to matters heard in the magistrates’ court.
The power – not yet in force – to permit Confiscation Orders to be made in the magistrates’ court is contained in Serious Crime and Police Act 2005. But the government now propose to introduce another secondary power to extend the magistrates’ courts jurisdiction. It is contained in clause 39 of the Serious Crime bill 2014. This is a power (known as a ‘Henry VIII clause’) permitting secondary legislation to be used to amend an Act of Parliament.
This is likely to have a significant impact on work undertaken in the magistrates court; currently 50% of Orders are for under £5000 and 75% for under £10,000.
There appears to have been no consideration given to this in the proposals to introduce Duty Solicitor contract tendering. (This would not be the first time that MoJ/LAA or before them LSC have failed to consider the impact of their proposed changes upon the Confiscation provisions)
These proposals are amongst matters being considered today (22 01 15) in the last Committee stage before Royal Assent. One significant new power is for the Court to consider and make findings on the interests of third parties (such as family members or businesses) in assets said to be owned by Defendants. These are aimed at reducing challenges to Confiscation Orders at a later stage but they do not provide for third parties to be represented at the time of the original hearing. It seems likely that decisions – not just of magistrates courts – making findings when third parties are unrepresented will be subject to challenge.
KL 22 01 15
All in all something of which Henry VIII himself might have been proud. It is not entirely clear what Mr Cromwell’s view would have been.
Impact Assessment for Serious Crime bill 2014:
Serious Crime Bill: Proceeds of Crime Act Amendments
Impact Assessment (lA)
Date: 28/05/2014 Home Office (Other departments or agencies: Ministry of Justice)
j) Simplify confiscation for lower value orders. We are working with the Ministry of Justice on secondary legislation which would allow confiscation orders to be heard in the magistrates’ court rather than the Crown Court. The intention is to commence the necessary legislation under SOCPA but also add an enabling provision so that the limit restricting magistrates to confiscation orders of up to £10,000 may be revised in future. It is more cost effective for hearings to be held in the magistrates’ courts. Where a magistrates’ court hears a case where there has been criminal benefit, it is not cost effective to refer the matter to the crown court for a confiscation hearing. The proposal provides for a possible future revision of the £10,000 limit-which also corresponds to a 6 month default sentence -so that magistrates can hear cases where the benefit is greater than £10,000.
Serious Crime Bill
Fact sheet: Amendments to the Proceeds of Crime Act 2002
Confiscation orders in magistrates’ court
25. Currently confiscation orders may only be made in the Crown Court. However, section 97 of the Serious Organised Crime and Police Act 2005 makes provision for magistrates‟ courts to be given the power to make a confiscation order in cases with a value of below £10,000.Work is in hand to bring this provision into force. Clause 39 enables this £10,000 threshold to be varied by secondary legislation.