ANNEX B: OVERVIEW OF THE CONFISCATION PROCESS UNDER POCA 1. Confiscation 1.7. Enforcement
The magistrates’ court (“enforcement authority”) has the ultimate responsibility for enforcing a confiscation order and it will enforce the order as if it were a fine. Once the payment period has expired, the enforcement authority can use its own powers to issue a distress warrant for bailiffs to realise assets. This is usually a two-stage process: initial distress warrants are only for known assets. If the order is not satisfied by the recovery (realisation) of those assets, a further warrant may be issued specifying the value to be realised without listing individual assets.   However, in cases where there are assets outside the jurisdiction, existing restraint orders, property held in names of third parties and involving real property or appointing receivers, the enforcer will normally be the Crown Prosecution Service, the National Crime Agency or the Serious Fraud Office.  In these matters both enforcement and prosecution authorities will work closely together to achieve the payment of confiscation orders.
It is the defendant’s responsibility to apply for a variation or discharge of the order where the assets are not sufficient to satisfy the confiscation order.   In the cases where assets have been realised, but have generated lower than estimated values and no further assets exist, the prosecution may consent to the variation or discharge being sought.
The defendant (or receiver, if appropriate) may apply to the court for the amount of an order to be reduced if the available amount is insufficient for full payment.  This is dealt with under section 23 of POCA which provides that the court “may substitute such smaller amount as the court believes is just”. The defendant must show that there is good reason why they no longer have sufficient assets to pay the order.
A confiscation order must be paid immediately unless it is shown that the defendant requires time to pay. The magistrates’ court will impose the default sentence (previously determined by the Crown Court) if the defendant fails to pay, but serving the sentence does not remove the debt.  Any default sentence will run consecutively (in addition) to the substantive sentence. Interest is payable on any outstanding amount once the time to pay has expired.