Default Sentence and Enforcement
When a confiscation order is made for the defendant to pay an amount of money, the Court will set a time to pay and also set a “default sentence” that can be imposed if the order is not paid.
Recent changes to confiscation law have increased default terms now imposed, reduced the time granted to defendants to pay, and granted additional powers to the Court to enforce payment of the orders.
Once granted, a Court may now only grant a defendant 3 months to pay (although it is possible to apply for an additional maximum of 3 further months). During this period no interest is accrued on the outstanding amount and the defendant cannot have their default sentence activated.
The greatest concern of defendants is almost always the default sentence.
The Court sets it based on the amount of the order to be repaid; the present sentences available are set out in the table below;
|Order Amount||Maximum Term|
|£10,000 or less||6 months|
|More than £10,000 but no more than £500,000||5 years|
|More than £500,000 but no more than £1 million||7 years|
|More than £1 million||14 years|
The Default term can only be activated by the Magistrates Court, not the Crown Court, at a separate enforcement hearing that can only be listed after the time to pay has expired.
At an enforcement hearing defendants serving prison sentences are produced, and those not in custody can be compelled to attend as the Court can issue a warrant for their arrest.
At an enforcement hearing the Magistrates can only adjourn the hearing or activate the default sentence. Defendants who seek to argue that the original confiscation order was wrong or that assets are no longer available will not be successful. The difficulty faced in appealing a confiscation order the defendant disputes is a major reason why expert representation is vital prior to the order being made.
If the sentence is activated, it is served as an additional consecutive sentence to the one the defendant is already serving. If the defendant has been released from custody, they will be sent back with a new sentence upon activation. Release is at the half way point as with an standard determinate sentence, with one important difference.
Defendants ordered to pay £1million or more and in receipt of a default sentence of between 7 and 14 years must serve the entirety of the sentence if imposed.
Once activated, a default sentence will only reduce if the outstanding amount is paid off (or the original confiscation order appealed).
Olliers representation both prior to, during and post confiscation order is entirely focused on avoiding the imposition of the default sentence. Firstly in terms of proactive and expert defence to ensure the benefit and available amount are as low as possible. Secondly to ensure when the order is made that the defendant is assisted as much as possible in satisfying it. Thirdly if a defendant is facing enforcement proceedings to make every effort to avoid the default through representation during the enforcement hearing.