The ‘view from below’
During interviews, respondents consistently described how confiscation proceedings were different to the criminal proceedings that preceded them. They described a process in which their attendance and participation was irrelevant because the confiscation process was ‘rigged’ to guarantee that the defendant was financially incapacitated indefinitely rather than to determine the true extent of their financial gain. A recurring complaint from several of the research participants was that they had been advised by their legal representatives during their initial confiscation hearing not to be too concerned with the benefit figure, as it is the available figure that is important, as this carries the immediate threat of a default prison sentence. Yet the benefit figure is also of great potential significance - as some of the research participants were beginning to find out. These participants complained of a ‘smash and grab’ approach in which solicitors take the path of least resistance by encouraging their clients not to challengethe benefit figure, enabling them to pick up their money and ‘ride off into the sunset’ on the pretence that they have done their job. However, by the time the benefit figure had become an issue for the research participants (which can be 10 or 20 years down the line), they were finding out that they had no right to recourse. All of the people interviewed during this research had been defended by a legal aid defence, a service which has for the past decade been severely hit by austerity cuts.[1] The resources that their legal teams were able to apply to their confiscation cases were determined by the finances made available under the legal aid regime and not by the complexity of the case; inevitably, this undermined the ability of the legal team to represent the best interests of the defendant.
The consequence of often poor advice given by their solicitors was that many of the participants agreed to inflated benefit figures which they strongly disagreed with, but they did so on the understanding that their available amount would be ‘negotiated’ down via an informal process between prosecution and defence that took place within the corridors of the court away from scrutiny. Although this correlates with Bullock’s research,[2] the voices elicited within this research described a less consensual and more coercive process. For example, the research participants were told that they had no option but to agree to the order because ‘if they pissed the judge off then he is likely to dig deeper and you’ll get a bigger order’ or their family’s finances would be investigated if they did not agree to the figures. Whilst the use of plea-bargaining measures is justified on grounds of efficiency and to minimise the distress caused to victims, it is important to point out that this is not what is occurring here; coercion is not the same as plea bargaining. As several of the research participants explained, such underhanded methods are utilised on the understanding that the offender’s family tends to be his or her ‘Achilles’ heel’; they are more inclined to agree to a confiscation order if the offender’s family is placed under threat.
What was consistent within the research was that confiscation defendants were not told about section 22 powers at any point during their confiscation trials. Instead, this was something that became apparent to them after their confiscation order had been ‘agreed’ on and, therefore, it was too late. The research participants stated that they would not have agreed to the benefit figure had they known of the section 22 powers. Now faced with the prospect of having their legitimately acquired assets confiscated, several of them explained how this acted as a disincentive to gaining legitimate employment, as Ryan[3] starkly pointed out: ‘What’s the point of going to work if they can come along and take ych car and ych house of ych?’
Whilst it could be argued that a confiscation defendant has a moral responsibility to pay an order based on what he or she has illegitimately acquired, as previously discussed, this obligation is mitigated by the realisation that confiscation orders tend to be grossly inflated and fail to reflect their illegitimate gains. Furthermore, the subsequent confiscation of after-acquired legitimate assets completely undermines the principal aim of asset recovery - the confiscation of ‘ill-gotten gains.’ In disincentivising the attainment of legitimate employment, confiscation policy also undermines rehabilitative strategies that set out to help offenders live law-abiding and useful lives. Therefore, confiscation policy is counterintuitive from a rehabilitative perspective. The disincentivising impact of the confiscation process is best captured by Sophie, who stated,
It’s like a game of snakes and ladders, you take a few steps forward and then, boom, you’re back to square one with nothing. You go to work, you buy a house and then you spend the next 25 years paying the mortgage for them to then come along and take it off yeh, that’s wrong! ... So of course I’m not going to slog my guts out for the next 25 years only to lose my house, no fucking way!
This exposes an important tension within confiscation policy. If the long-term pursuance of confiscation debt disincentivises legitimate employment, then the confiscation order is unlikely to be paid.
This tension is ftirther exposed in the following extract from Gary who had realised all available assets and paid as much money as he was able to but was still forced to serve an additional prison sentence in default. Despite this, he was committed in his attempts to move forward in his life and was able to secure legitimate employment. However, Gary was then summoned back to court on his confiscation order, which had been continually accruing interest, and the judge imposed an ‘attachment of earnings’ order to his salary. This meant that on top of the other statutory deductions, such as tax and national insurance, he was left with very little disposable income. He went on to explain that the reduction in his disposable income imposed socio-economic disadvantage on him and his family in two ways: first, there was significantly less money to spend on family activities and, secondly, he was no longer able to afford to make pension contributions, which would provide security in later life. Ultimately, he packed his job in:
I went to court and they wanted to put an attachment of earnings on my wages at something like 17%. So, on top of the tax and national insurance I’m already paying. I’m paying like the higher tax rate then, but I’m on the minimum wage so what I’m left with is nothing. It’s like an added tax for criminals.
For several research participants, the statutory levy of 8% interest meant that the amount they could afford to pay each month by way of an ‘attachment of
1
Ministry of Justice, Transforming Rehabilitation: A Revolution in the Way We Manage Offenders (Cm. 8517, 2013).
earnings’ was less than the amount being added in interest. Therefore, despite making monthly payments from their legitimate earnings, their confiscation order was increasing in value. Some, like Karl, pointed out the demoralising effect, whilst others pointed out that their confiscation order was in effect a life sentence:
How are they getting away with it? I make payments every month, yet me order goes up. What chance have I got of ever paying it off? Seriously, that can’t be right can it? . . . It’s legalised theft!
Whilst such insights begin to raise important questions about [disproportionality, they also expose further contradictions within the ideology of confiscation. The recovery of monies derived from accruing interest is a further step away from the idea that such processes confiscate ‘ill-gotten’ gains, which brings into question the legitimacy of the legislation.
