Delay and Consumer Price Index (CPI) increases in confiscation cases

Defendants and practitioners will be familiar with the substantial amount of time it now takes for complex cases to come to court and for subsequent confiscation proceedings to be finalised. Due to Covid-19 and the increasing backlog, there is now frequently a long period between charge, conviction and POCA disposal. It is not uncommon for the court to be considering criminal activity going back 10 years and sometimes more.

The prosecution is entitled to increase the benefit figure for criminal activity to reflect the increase in Consumer Price Index (CPIH) pursuant to s80(2) POCA 2002.

This can apply also to tainted gifts within the meaning of s.77 POCA 2002.

The passage of time coupled with sustained inflation in recent years, means that applying CPI has a significant effect in confiscation proceedings. Is there a remedy to this?

Delay is an established factor that can be considered at the sentencing stage. In cases where there is a significant delay, Judges may reduce the sentence by a further percentage to reflect the passage of time and impact on the defendant.

In a recent case, we successfully argued at first instance, that the court should reflect a similar reduction when considering any CPIH increases, both in relation to the benefit figure and tainted gifts.

This is on the grounds that the recoverable amount needs to be a proportionate order (section 6(5) POCA 2002).

The case of R v Haden [2024] EWCA 344 provides further assistance. Although in the context of procedural delay within the confiscation proceedings themselves, Lord Justice Edis said [at paragraph 30]:

"Confiscation proceedings must, of course, be conducted in a way which is fair to the offender. Non-compliance with the procedural code, if it causes delay and prejudice, may be relevant to the order which the court decides to make. If the proceedings have become unfair because of delay, in that it has caused some clear prejudice to the offender, the court has options. Without attempting to list them exhaustively, these include:

1. The ordinary ability of a fact finding court to reach conclusions on matters of fact which are fairly arrived at and take into account any evidential prejudice a party may have suffered because of delay.
2.  The obligation of a court not to order an offender to pay the recoverable amount where it would be disproportionate to do so, see section 6(5) of the 2002 Act.
3. Taking unfairness into account in deciding whether there would be a serious risk of injustice in applying the four criminal lifestyle assumptions in section 10 of the Act.
4. …"

It is helpful if this issue arises, to raise it in any s17 statement and to supplement those submissions by providing the Judge with a chronology setting out the key procedural dates including police investigation, arrest, interviews, charge and trial. Moreover, sentencing remarks where delay has been recognised and taken into account is an important factor.

By doing so, the court is enabled to ensure a confiscation order is proportionate and fair.

Dermot Keating KC and Chantel Gaber recently appeared in complex confiscation proceedings where the issues of delay and its application upon Consumer Price Increases were argued.