The National Audit Office (NAO) has issued a report fiercely criticising the current use and effectiveness of Confiscation Orders in the UK. Its key finding was that of every £100 obtained by criminal means, only 26p is recovered. The loss to the economy through fraud in 2012 – 2013 stood at £52 billion, of which only £133 million was recovered, and furthermore the administration costs in retrieving it amounted to £102 million, a net recovery of a comparatively pitiful £31 million.
The number of Confiscation Orders issued is also liable to invoke criticism, 673,000 convictions were obtained last year and of those a Confiscation Order was made in only 6,932 cases.
When one moves beyond the statistics, their ineffectiveness becomes more apparent. The number of convictions is fewer than the number of recorded crimes, and fewer still than the total number of crimes committed (as the British Crime Survey has demonstrated over the years, not all crimes are reported) therefore the number of Confiscation Orders issued in relation to the total number of crimes committed is more insignificant still. Although a caveat must be added, as for many crimes a Confiscation Order would be inappropriate and one cannot be awarded without a finding of guilt.
One of the primary concerns when attempting to reclaim money is that there must still be money in the possession of the person subject to the order. An individual cannot repay money they no longer have, which is likely to be the case given the time taken between the commission of and the conviction for an offence. This is of particular concern when dealing with large sums, unlikely to be recoverable through taxation or other instalment schemes.
Only 2% of Confiscation Orders were paid in full, and although the Courts and Tribunal Service can boast that they recovered 90% of all orders for £1,000 or less during the same period, it is apparent that default sentences of up to 10 years imprisonment and interest of 8% for non-payment is proving ineffective as an incentive to comply or as an initial deterrent.
Amyas Morse, Head of the National Audit Office has said:
“The fundamental problem is a lack of strategic direction and agreement on what level of confiscation would constitute success. This is compounded by poor information, lack of knowledge, outdated IT systems, data errors and ineffective sanctions. There is a sharp need for a coherent and joined-up cross-government strategy.”
A further issue is that police officers and other organisations responsible are not giving the issue sufficient priority, however they may not be to blame for these failures. The UK currently operates a retributivist system of justice, in that it seeks to censure and punish those who commit crime. The Confiscation Order is, by its very nature, a far more restorative, and when those proceeds are returned to victims, reparative way of dealing with criminal behaviour.
The criminal justice system in the UK at present is designed to provide retributive justice. The police are concerned with obtaining evidence which will amount to a conviction in court, and are not focused on repairing the harm caused by an offence. The sentencing structure, and subsequent prisons and community orders are all primarily designed to punish for past conduct, not repair the harm caused by it. Many community orders in particular, may encompass some form of restorative practice, but it is the exception to the rule.
Confiscation Orders are added onto the retributive aspect of the sentence and as such are arguably an afterthought; a restorative order attached to a retributive system without the mechanisms or mentality required to ensure the effective accomplishment of its ambitions. The fact that so few Confiscation Orders are made can be viewed as evidence that their restorative intent is not a sufficiently integrated aspect of the justice system.
If changes are to be made then the system itself must shift its focus slightly toward the restorative aim embodied within Confiscation Orders and the mechanisms in place must work effectively toward a goal, which is at present a departure from the traditional operation of the justice system.