10.
Sentencing, confiscation and ancillary orders
10.1
Confiscation
10.1.1
Confiscation proceedings in the Crown Court (under the Proceeds of Crime Act 2002 (“POCA”)) against a convicted defendant will follow where the conditions in section 6 of that Act are fulfilled – that is to say either the prosecutor asks the Court to proceed under that section or the Court believes it is appropriate to initiate them of its own motion.
10.1.2
Although the proceeds of a confiscation order will in the ordinary course of events go to the state, the Court will have the power to order that a compensation order be made and paid out of the proceeds of the confiscation order.
10.1.3
The decision to instigate confiscation proceedings should be made in the public interest and prosecuted with that interest paramount.
10.1.4
10.1.4 In considering whether to institute confiscation proceedings, the lawyer acting for the private prosecutor should explain to the private prosecutor that they will have regard to any guidance issued from time to time by the CPS or the Attorney General and that the Court will apply the confiscation regime in a way that is compliant with Article 1 of the First Protocol to the ECHR.22
10.1.5
Early consideration should be given to applying to the Crown Court for s.40 restraint orders and the private prosecutor should be advised of the duty of candour which arises in any ex parte applications.
10.1.6
There is nothing to prevent a private prosecutor asking the Court to set a confiscation timetable, and to provide a section 16 statement as required. A private prosecutor should consider whether they require the assistance of an appropriate officer as defined by section 378(1) of the Proceeds of Crime Act 2002 in order to investigate properly the defendant’s financial circumstances. Any agreement between the private prosecutor and an appropriate officer or body providing an appropriate officer should be made with reference to the principles set out in R v Zinga [2014] 1 W.L.R. 2228at paragraphs 52-54.
10.1.7
A private prosecutor can recover the costs of enforcing a confiscation order in the High Court under the Prosecution of Offenders Act 1985, s. 1723.
10.2
Parallel civil proceedings
10.2.1
If a court comes to the conclusion that the defendant has benefitted from his or her criminal conduct, it must proceed to make an order unless the Court “believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct”,24 in which case it has a discretion rather than an obligation to make an order.
10.2.2
A private prosecutor must bring any existing or intended proceedings of which they are aware to the Court’s attention.
10.3
Sentencing
10.3.1
Prosecutors must assist the Court to reach a decision as to the appropriate sentence, including by drawing any relevant sentencing guidelines to the Court’s attention. A private prosecutor should be made aware that the prosecution’s approach to sentence will be consistent with its wider obligations to ensure that the case is conducted fairly. At the sentencing stage, the Prosecution will therefore assist the Court to reach the appropriate sentence and to avoid any error.
10.3.2
Private prosecutors should obtain the antecedent history (“PNC”) of any defendant and make copies of the same available to the sentencing court. The Police Liaison Office (“PLO”) will frequently not disclose the PNC to the private prosecutor. If that occurs, an order should be sought for the PLO to disclose the PNC to the Court. The full name, date of birth and residential address of the defendant will need to be provided to the PLO in order for the PNC to be located. Sufficient time should be allowed for this to occur, to allow the defence advocate to take full instructions on it.
10.4
Victim personal statement
10.4.1
In all cases the prosecution should consider whether it is appropriate to invite a victim, or a family member, to provide a Victim Personal Statement, a Community Impact Statement or an Impact Statement for Business.
10.5
Ancillary orders
10.5.1
In all cases the private prosecutor must consider and apply for any appropriate ancillary order, having regard to the needs of the victim, their future protection and the protection of the public.
10.6
Unduly lenient sentence
10.6.1
In respect of any sentence imposed for an offence triable only on indictment, or for any other offence specified in Schedule 1 of the Criminal Justice Act 1988 (Review of Sentencing) Order 2006, that appears to the private prosecutor to be unduly lenient, they may refer the matter to the Attorney General.
22 R v Waya [2012] 3 W.L.R. 1188.
23 Mirchandani v Lord Chancellor [2021] 1 Cr App R 7 (136)
24 Section 6(6) of the Proceeds of Crime Act 2002.
