This instruction applies to:- / Reference:-
Prisons / PSI 16/2010
Issue Date / Effective Date
Implementation Date / Expiry Date
28July 2015
(Revised) / 09 March 2010 / 31 December 2017
Issued on the authority of / NOMS Agency Board
For action by / All staff responsible for the development and publication of policy and instructions
NOMS HQ
Public Sector Prisons
Contracted Prisons*
NOMS Immigration Removal Centres (IRCs)
National Probation Service (NPS)
Community Rehabilitation Companies (CRCs)
Other Providers of Probation and Community Services
Governors
Heads of Groups
NOMS Rehabilitation Contract Services Team
* If this box is marked, then in this document the term Governor also applies to Directors of Contracted Prisons
Instruction type / Service specification support
For information / Staff who deal with sentence calculations
Finance staff
All prison staff
HM Courts and Tribunals Service (HMCTS) Regional Confiscation Units
HM Revenue and Customs
National Crime Agency (NCA)
Crown Prosecution Service (CPS)
NOMS Immigration Removal Centres
Provide a summary of the policy aim and the reason for its development / revision / Update June 2015: This PSI was first issued on 26 February 2010. Ithas been revised to incorporate the changes introduced by the Serious Crime Act (SCA) 2015 and referred to in paragraph 16.2.16 of PSI 03/2015 Sentence Calculations – Determinate Sentenced Prisoners. The SCA 2015 introduces provisions which end early automatic release for offenders serving terms in default of payment of confiscation orders, imposed by the Crown Court on or after 1 June 2015, where the confiscation order is for £10 million or more.The changes are not retrospective.
Other changes include an update of the default terms in the table at paragraph 3.5, a few changes to paragraph 2.5 on Home Detention Curfew (HDC) to better reflect current HDC policy, updated contact details and minor template and referencing updates.
Revisions to this PSI are outlined in paragraphs 1.1, 1.2, 1.3, 1.8, 1.9, 2.5, 2.6, 2.10 and 2.11 and 3.5.The expiry date has also been extended.
Contact / For further information contact:
Associated documents / PSI 1/2012Managing Prisoners’ Finance
PSI 03/2015Sentence Calculation–DeterminateSentencedPrisoners
PSO 6700 Home Detention Curfew
PSI 13/2015 Release on Temporary Licence
PSI40/2011 Categorisationand Recategorisation Of Adult Male Prisoners
PSI 39/2011 Categorisation and Recategorisation Of Women Prisoners
PSI 41/2011 Categorisation and Recategorisation Of Young Adult Male Prisoners
PSI 37/2013 NOMS Finance Manual
National Best Practice Guide to Confiscation Enforcement 2013
Replaces the following documents which are hereby cancelled: PSO 4620 and PSI 32/2007 Confiscation Orders
Audit/monitoring: Mandatory elements of instructions must be subject to management checks (and may be subject to self or peer audit by operational line management/contract managers, as judged to be appropriate by the managers with responsibility for delivery). In addition, NOMS will have a corporate audit programme that will audit against mandatory requirements to an extent and at a frequency determined from time to time through the appropriate governance.
Introduces amendments to the following documents: None
Notes: All Mandatory Actions throughout this instruction are in italics and must be strictly adhered to.
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CONTENTS
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Section / Subject / Applies to1 / Executive summary / All staff
2 / Operational instructions / Governor and Key staff – staff dealing with sentence calculation, risk assessments and prisoners’ financial affairs
3 / Guidance / All staff
Annex A / Process Map / Key staff – staff dealing with sentence calculation, risk assessments and prisoners’ financial affairs
Annex B / Contact details for Enforcement/Prosecuting Authorities / Key staff – staff dealing with sentence calculation and risk assessments
Annex C / Contact details forCourts and Regional Confiscation Units (RCU’s)
1.Executive summary
Background
1.1This PSI was originally issued in February 2010 in order to require governors to have systems in place to ensure that establishments are compliant with the orders and sentences of the court in cases where an offender is subject to a confiscation order. At that time, it also reinforced the NOMS’s commitment to Public Service Agreement (PSA) 24 – Deliver a more effective, transparent and responsive Criminal Justice System for victims and the public – which is a Government priority. The PSA was abolished in June 2010. This instruction is in line with the National Best Practice Guide to Confiscation Enforcement 2013as mentioned in the paragraph 15.18 of theNOMS Finance Manual PSI 37/2013, which requires prisons to notify prisoners of the process to arrange payments from their Prison-NOMIS account via a cash disbursement. If the prisoner agrees to a sum being taken from their prisoner account, either as a one of payment or in regular instalments, the prison is required to forward the payments to the enforcement authority.
1.2This PSI has been revised and re-issued in order to take account of the provisions in the Serious Crime Act 2015 which end automatic release for those offenders made subject to a confiscation order on or after 1 June 2015 where the confiscation order is for £10 million or more. Detailed instructions for prison staff who are responsible for sentence calculations in order to ensure prisoners are released on the correct date and the particular amendments giving rise the policy change can be found in PSI 03/2015 Sentence Calculation –DeterminateSentencedPrisoners and Chapter 16 of the operational guidance attached to that instruction.
1.3This guidance applies to confiscation orders made in the Crown Courts of England and Wales only.
Desired outcomes
1.4This instruction aims to ensure that prison staff will be aware of:
- what a confiscation order is;
- what mandatory actions must be followed;
- how default terms should be calculated
Application
1.5Chapter 2 sets out the mandatory actions that must be followed when a confiscation order is received from the Court.
1.6Chapter 3 provides guidance on the confiscation order process which includes; enforcement of orders and transfer to open conditions.
Mandatory actions
1.7Governors must have a system in place to ensure that when a confiscation order is received from the court, the relevant Prosecution Enforcement Unit and Regional Confiscation Unit (RCU) are informed when there is any change in the circumstances of a prisoner who is subject to a confiscation order.
1.8With effect from 1 June 2015 provisions in the Serious Crime Act 2015 end automatic release at the half-way point of terms of imprisonment imposed by the Crown Court in respect of non-payment of confiscation orders of £10 million or more. Any term of imprisonment subsequently enforced by the magistrates court must be served in full irrespective of the £ amount outstanding at the point that the magistrates court enforce the term in default. See PSI 03/2015Sentence Calculations – Determinate Sentenced Prisonersfor full details.
Resource Impact
1.9PSI 03/2015 notes that there will be an initial resource impact for staff responsible for carrying out sentence calculations who will need to take time to familiarise themselves with the new instructions surrounding the new release arrangements for terms of imprisonment in default of payment of confiscation orders where the original order made by the Crown Court was £10 million or more. Following that initial familiarisation process, it notes that there are no additional resources required.
(Signed)
Digby Griffith
Director National Operational Services, NOMS
2.Operational instructions
2.1It is a requirement that the Prosecution Enforcement Units and HMCTS Regional Confiscation Units (RCU) must be kept informed about prisoners who have had a confiscation order made against them. The confiscation order will indicate which Prosecution Unit is enforcing the order and a list of contact details for Prosecution Enforcement Units can be found at Annex B. In addition to this, the RCU in the region where the Order originated from must also be kept informed and a contact list for Courts and RCU’s can be found at Annex C. Do not send information to the RCU in your region unless the originating court falls within the enforcement area.
2.2Governors must have a system in place to ensure that when a confiscation order is received from the court, the relevant Prosecution Enforcement Unit and RCU are informed by email when the particular prisoner concerned:
- obtains a parole hearing date and additionally the outcome of the hearing;
- is to be recategorised to Category D/open conditions;
- is to be transferred to another prison NB: highlight if this is an open prison;
- receives an amended release date as a result of ADA’s, UAL, Appeal etc or receives a further sentence or a default warrant is issued and additionally when the default term is served;
- is to be released on Home Detention Curfew;
- is to be released on temporary licence (ROTL);
- is to be administratively removed, deported, repatriated or is an illegal immigrant;
- dies whilst in custody.
2.3The relevant Prosecution Enforcement Unit and RCU must also be advised, by email of:
- the receipt of a production order;
- the release date of a prisoner with an outstanding confiscation order;
- the release address details;
- where applicable, details of prisoner’s offender manager and office they have to report to.
2.4On a monthly basis, the relevant Prosecution Enforcement Unit and RCU must be kept informed of the value of any funds greater than £250 held by the prisoner who is subject to a confiscation order and of any (financial) income the prisoner receives whilst serving their term of imprisonment. A print out of the relevant prisoner’s Prisoner Income and Expenditure System (PIES) and/or Prison-NOMIS account must be obtained from the Prisoners’ Monies Clerk (or the equivalent account system statement in a contracted prison) and forwarded to the relevant Prosecution Enforcement Unit and RCU. This is also applicable if the prisoner opens a bank account while they are in prison.
Home Detention Curfew
2.5Prisoners are not eligible for HDC on a default term imposed for failure to pay a confiscation order.The prisoner may, however, have been eligible for HDC on the principal sentence, providing there are still 14 days or more to spend on HDCbetween the end of the custodial period of the default term and the halfway point of the original sentence. In any case where the decision to grant HDC is madeon or prior to the HDCeligibility date (HDCED), the default term commences on the day after the HDCED. If the decision to grant the HDC is made after the HDCED, the term commences the day after the HDC decision date.Advice on HDC can be obtained from PSO 6700 or contact either Suleman Qureshi on 020 3334 5044, Junior Ogueri on 020 3334 5043 or Verginia Georgieva on 0203 334 4689, email: . .
Release on temporary licence
2.6For guidance on release on temporary licence and confiscation orders please refer to PSI 13/2015. Advice on ROTL can be obtained from:
Suleman Qureshi on 020 3334 5044
Junior Ogueri on 020 3334 5043
Verginia Georgieva0203 334 4689
Email:
Early release on a warrant of commitment in default of payment on a confiscation order.
2.7Such terms cannot form part of a single term/be aggregated with a sentence of imprisonment. They are always ordered to run consecutively and so will commence on the day after the last custodial day of the sentence of imprisonment.
2.8The early release arrangements are:
- Where the warrant of commitment is dated before 4 April 2005 and the term is for less than 12 months, release is at the halfway point. If the term is for 12 months or more, release is at the two thirds point.
- Where the warrant of commitment is dated on or after 4 April 2005 release is at the halfway point whatever the length of the term.
- Release is unconditional.
2.9Where a consecutive warrant of commitment is received and the prisoner receives a recommendation for release on parole, on the earlier sentence of imprisonment, then the prisoner must be notionally released on licence from the sentence of imprisonment but retained in custody to serve the confiscation order unless the order is paid. In such circumstances establishments must ensure that the warrant is executed.
Confiscation Orders of £10 million or more imposed on or after 1 June 2015
2.10Where the Crown Court imposes a term in default of a confiscation order on or after 1 June 2015 and the amount of the order is £10 million pounds or more, any term of imprisonment subsequently enforced by the magistrates’ court must be served in full.This rule will apply irrespective of the £amount outstanding at the point that the magistrates court enforce the term in default. It is the original amount imposed by the Crown Court that determines whether the subsequent term of imprisonment is served in full or attracts early release at the half way point. Where that original amount was £10 million or more, there will be no early release.
2.11Further guidance on sentence calculation issues can be found in PSI 03/2015Sentence Calculation – Determinate Sentenced Prisoners.
3.Guidance
What is a confiscation order?
3.1A confiscation order is part of the sentence passed on an offender. In most cases, however, the confiscation order is imposed after the rest of the sentence has been determined. The confiscation order is aimed at depriving an individual of their criminal benefit. The questions of determining that benefit and then how the individual can pay the order can be complex and require lengthy hearings in their own right. For this reason, offenders may start serving their sentence before a confiscation order has been made.
3.2Confiscation orders can be made under three Acts:
- The Criminal Justice Act (CJA) 1988 (as amended);
- The Drug Trafficking Act (DTA) 1994; and
- The Proceeds of Crime Act 2002 (POCA).
3.3For criminal conduct prior to 24th March 2003, the confiscation orderwill be made under CJA or DTA. Confiscation orders will be made under POCA for criminal conduct that occurs on or after 24th March 2003.
3.4To make a confiscation order, a judge has to determine the extent of an offender's benefit from his/her crime(s) and make the order in that sum unless the offender is able to demonstrate that his capacity to pay is less than the benefit figure. In such a case, the order is made on the basis of the lesser figure representing the offender's capacity to pay.
3.5When making a confiscation order, a judge will fix a term of imprisonment which the offender should serve if he/she fails to pay the order and no other enforcement method might be effective. The maximum amount of the default term depends on the size of the confiscation order. Whatever the maximum term, the judge will fix the length of the default term at the level he/she considers necessary, in order to force payment. The judge may also give the offender time to pay the order. The table below sets out the default term on size of confiscation order:
Confiscation Order Amount / Default 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
Confiscation Order Process
3.6An application for the court to make a confiscation order will be made by the prosecuting authority, for example the Crown Prosecution Service (CPS) or Revenue and Customs Prosecutions Office (RCPO). The offender can appeal against the decision or can appeal against the amount of the order.
3.7The confiscation order process starts after conviction when the prosecutor applies in the Crown Court to make a confiscation order.
3.8The prosecution, working with law enforcement financial investigators prepare a case for the making of a confiscation order. This case is presented at a confiscation hearing in the Crown Court where a judge decides whether to impose the order and if so, in what amount.
3.9At this point, the offender can appeal against the confiscation order and/or the amount. If the appeal is successful, the order will either be quashed, or a variation to the order will be made.
3.10If the confiscation proceedings were under POCA, the prosecution can also appeal against the failure to impose an order or the amount of the order.
3.11The Crown Court will notify all relevant parties, including the Governor/Director if the offender is in custody, of the confiscation order. At each stage the offender should be notified by the enforcement authority of what is expected of him/her, the outcome of appeals and the outstanding balance of the confiscation order. They will receive notification of the date by which the monies must be paid and the implications of non-payment. The prison may become involved in the payment of the confiscation order, and will be informed of who requires the monies by the enforcement authority if this is the case, but this is unlikely as given the sums involved, the majority of offenders will deal with it through their legal adviser.
Nominal Orders
3.12In some cases, where the offender has no money or realisable assets, theCrown Court will make anominal order e.g. £1.00. This enables law enforcement to revisit the case if further assets come to light at a later date or the individual benefits financially; for example from an inheritance. In cases where a prisoner has a nominal order of over £10 please contact relevant Prosecution Enforcement Unit and RCU to ensure they are made aware of any change in the prisoner's circumstances.
Failure to pay/Enforcement of Order
3.13If the offender does not pay all of the confiscation order before the time to pay has expired, he/she will accrue interest at 8% per annum on the unpaid balance. If the amount of interest together with the unpaid balance takes the confiscation order within a new band on the default sentence table (paragraph 3.5 refers), the prosecution can apply to the court to increase the default sentence in accordance with the new maximum default term.
3.14An offender will not serve his/her default term unless a magistrates' court orders that he/she should do so (Issuing a warrant of commitment). Before making that order they must find that the offender has failed to pay the order and considered that no method of enforcing payment appears to be effective.A prisoner serving a term in default of a confiscation order is a criminal prisoner.
3.15If an offender has served the custodial element of his/her sentence before a confiscation order is made, the magistrates' court can issue a warrant for his arrest so that he/she is produced before the court considering whether to activate the sentence. But an offender cannot be extradited simply to serve a default term.
3.16The prisoner can still choose to pay some or all of the confiscation order and if he/she does so they will not serve the portion of the term which has been paid. The court will inform the prison of the effect of any payment on the default term. Serving the default term does not remove the requirement to pay the confiscation order, but the offender cannot serve another term in respect of the same sum. However, he/she should be made aware that they can be given a further term in default by the court in respect of significant accrued interest.