Improving the Collection and Enforcement of Confiscation Orders in the Magistrates’ Court
Creators: name: Naughton, Debbie
Publisher: name: University of Lincoln
Year: 2023

description: This thesis critically examines the rules and principles which govern the enforcement of confiscation orders in the magistrates’ court. Although confiscation orders are made in the Crown Court using the confiscation legislation, the rules for the magistrates’ court enforcing them are based on the legislation developed for enforcing other financial penalties, for example fines; and confiscation orders have characteristics which are different to other financial penalties. As a result, the rules are complicated and some of the principles for enforcing confiscation orders have been developed by the judiciary interpreting the fines based legislation to fit the enforcement of confiscation orders. This has resulted in difficulties with enforcement. This thesis asks and answers two questions. Firstly, how has the confiscation legislation developed in relation to the enforcement of confiscation orders in the magistrates’ court? Secondly, what future legislative amendments might assist the enforcement of confiscation orders by the magistrates’ court and create an alternative to restraint? In answering the first question, this thesis collates, explains and critically analyses the development of the rules and principles of the powers of enforcement in the magistrates’ court; and the issues about enforcement which have arisen since the introduction of the confiscation regime, an area that has received little academic attention. As such it adds to the academic research in this area of law. This thesis will show that the confiscation legislation provides some specific powers for the magistrates’ court, but in the main the application of the fines based powers are the ones that apply. Changes could be made to improve their application. It reviews the law in relation to payment orders, and the use of charging orders by HMCTS to enforce confiscation orders. It shows that the powers to enforce a confiscation where the asset is a house are cumbersome and despite the introduction of payment orders in relation to bank accounts, further improvements could be made. In answering the second question this thesis critically analyses the development of the rules and principles of restraint orders; and charging orders made under the pre-Proceeds of Crime Act 2002 legislation. It examines the issues which have arisen in both areas and demonstrates that the changes recommended will also improve this area of law. This thesis makes a unique contribution to the academic discussion of the enforcement of confiscation orders by examining the law and issues created by the legislation before and after the Proceeds of Crime Act 2002. It also analyses the law relating to the enforcement of confiscation orders in the magistrates’ court about which little has been written academically. Finally, this thesis recommends alternatives to restraint, namely the re-introduction of charging orders as a power available to the Crown Court, and for the Crown Court to have the power to make payment orders. It is suggested that this will assist the magistrates’ court enforcing confiscation orders; and could also provide a less draconian and more effective alternative to restraint where a defendant owns a house or has cash in a bank account.