Confiscation kicks in following a criminal conviction - in planning enforcement this will most often be, although it is not limited to, breach of an enforcement notice. To understand how the Proceeds of Crime Act applies to breaches of planning control, we need first to grapple with some of the basic concepts used in confiscation.
First off you will need to ask whether property has been obtained as a result of or in connection with criminal conduct. In English, has the defendant obtained property (including money) or an interest in property as a result of a criminal breach of planning controls? If so, confiscation can bite.
Importantly, property held or obtained abroad is considered part of the defendant's benefit, notwithstanding that no offence has been committed in the jurisdiction where that property is held. Those with holiday homes in the Algarve or with offshore accounts can still find the value of those assets or savings being caught when calculating the value of the defendant's benefit.
By the way, property includes money, all forms of real or personal property, things in action and intangible or incorporeal property. You obtain an interest in any of those forms of property by having any legal estate, equitable interest or power in or over that property.
And if more than one person obtains an interest in the property then, subject to the specific facts and circumstances of their interest, they can all be deemed to have a benefit that equals the total amount.
• Three people (Smith, Jones and Bloggs) are all signatories to a single bank account;
• Into that account the monies received from a park and ride are paid;
• The park and ride is operated in breach of an extant Enforcement Notice;
• Over each of three years £500,000 is paid into that account (£1.5million in total across the three years).
What is the value of the confiscation order that could be made against each of Smith, Jones and Bloggs?
The answer is £1.5million against each of Smith, Jones and Bloggs, because each of the three had direct and full control over the full extent of the monies paid into the account. Yes, you did read that right, £1.5million against each of Smith, Jones and Bloggs - or £4.5million in total.
Draconian? Yes. But this is how the confiscation regime operates. Breach of the defendant's human rights? No. The operation of the Proceeds of Crime Act in circumstances very similar to the example above has been given the seal of approval by the House of Lords (see R. v. May, Jennings and Green  UKHL 28-30).
As an interesting exercise for yourself, how many clients that you've advised, or defendants you've prosecuted, might've ended paying an awfully large amount of money if confiscation had been brought into play? Be honest now...when you were advising your client and they asked "how much is this going to cost me?" did you even contemplate that it might cost them this much? Imagine if it did end up costing the client this much - how impressed would they be that you hadn't given them advance warning of this?
Next time we'll look at how to calculate "how much is this going to cost me?"
Questions? Don't hesitate to get in touch.