The confiscation of criminal proceeds is a key global weapon against corruption, intended to ‘take the profit’ out of the crime – with the aim of returning that money to the public and, hopefully, deterring future corruption. But legal regimes around confiscation vary in the extent to which they embrace corruption, bribery and fraud as appropriate crimes that can trigger confiscation. In this blog post, Tristram Hicks argues that the UK is missing an opportunity to use this tool in the fight against corruption.

The definition of ‘being a criminal’ is currently part of a wider review of post-conviction confiscation by the Law Commission, the public consultation for which has just finished (in December 2020). A key question is whether “corruptors” should be subject to enhanced confiscation measures.

Section 75 of the UK Proceeds of Crime Act, 2002 was originally written to define “being a criminal” in a way that an ordinary member of the public would understand the term. It describes someone like Norman Stanley Fletcher (from legendary TV series Porridge) or Bill Sykes (from Oliver Twist) or even Keyser Söze (from The Usual Suspects). These would all meet the definition in Section 75. It’s a clever piece of law. To qualify as a criminal under Section 75 it’s necessary to be convicted of any listed habitual or occupational crime, such as counterfeiting, drug or human trafficking; or any offence that takes six months or more to commit; or a collection of offences that together produce a serious financial gain.

If a person is convicted under Section 75, the criminal court is allowed to assume that all their assets are the proceeds of crime and confiscate them. There are multiple safeguards, of course, because this is intentionally draconian legislation.

Since 2004 all these convicted criminals, investigated by any agency, such as the Police, Revenue & Customs, NHS Fraud, local authority, Environment Agency or Trading Standards, have all been listed on one database, held at the National Crime Agency.

The Law Commission consultation is therefore important to criminal justice policy makers, legal practitioners, criminal investigators, Chief Officers and Police and Crime Commissioners.

For legal experts reading this post, when I describe “being a criminal”, I am referring to the “criminal lifestyle” provisions of POCA which trigger the “confiscation assumptions”. It is one of the tragedies of legal drafting that this clever statutory definition of “being a criminal” was misnamed “having a criminal lifestyle”, which is not the same thing at all. As a result of this misleading terminology, significant policy benefits have been missed.

This comprehensive list of criminals is part of the Joint Asset Recovery Database held at the NCA. The people listed have had their qualifying status clearly defined and then validated by the rigour of the Crown Court. If your agency’s mission is tackling habitual criminals such as fraudsters, smugglers, corruptors, illicit traders, counterfeiters, money launderers or any criminal motivated by money it’s a really useful list. This could have been used for policy, performance and strategic purposes by multiple agencies, but this opportunity has not been taken up.

The Law Commission say that stakeholders in their pre-consultation raised bribery and corruption as potential candidates for inclusion in Schedule 2. The consultation itself asked for views about Section 75, but proposed that “bribery” and “fraud” should not be included in the list of offences that trigger enhanced confiscation.

This is an odd decision. Including bribery and fraud would make the court’s ability to confiscate much easier and strengthen the toolkit against corruption. You might think that these offences are very definitely the kind of offences committed by habitual or occupational criminals and that they should be on the list; that was certainly the view of the Metropolitan Police Fraud Squad detectives who wrote the early drafts.

The Law Commission argument is that bribery might qualify for enhanced confiscation anyway, if there were multiple offences or a single offence that took a long time to commit. This is a valid argument, but also true of other offences which are included on Schedule 2. It seems that this is really a matter of priority. They are basing their thinking on the handful of cases of bribery overseas under the Bribery Act, 2010, and seem to assume that deferred prosecution agreements rather than real enforcement are the answer.

The consultation report also omits corruption within the UK, perhaps because of the dearth of casework. In fairness the Commission does not have much to go on, in terms of ready information about domestic corruption. The UK has no criminal investigation team dedicated to domestic corruption, nor is there a specialist prosecution office. (The Law Commission has recently reviewed the misconduct in public office common law offence).

The Law Commission effort to modernise legislation is to be applauded, but this particular proposal seems to be a missed opportunity to strengthen an important weapon in the fight against corruption at home and abroad.

The author is a former Detective Superintendent in the Metropolitan Police Service, who spent ten years on the UK Criminal Finance Board, responsible for implementing the Proceeds of Crime Act. He is now an independent international consultant on criminal asset recovery.

An earlier version of this post appeared on the author’s website.