Criminal conduct is defined as:
“Conduct that constitutes an offence in any part of the UK or, if the conduct occurred elsewhere, would constitute an offence in any part of the UK if it occurred there”.
Criminal conduct can be either “particular” or “general”. This affects the way a confiscation case proceeds and can lead to distinct confiscation regimes: particular criminal conduct or general criminal conduct (criminal lifestyle).
Particular criminal conduct refers to offences that the defendant has been convicted of in the current (confiscation) proceedings and all other offences taken into consideration.
An example would be where the court is considering a confiscation order in relation to a defendant who is convicted of a single offence of theft (say, a watch valued at £800) from a jeweller’s and asks the court to take a similar offence (of obtaining a shirt valued at £50) into consideration. The benefit in this case totals £850 and the court can make a confiscation order in this amount.
“General criminal conduct” means the defendant’s criminal conduct, whenever the conduct occurred and whether or not it has ever formed the subject of any criminal prosecution. “General criminal conduct” therefore would include any “particular criminal conduct”. This regime depends on the concept of “criminal lifestyle”. The court must apply the assumptions to all of the defendant’s income and expenditure in the previous six years if the court decides the defendant’s benefit to be from general criminal conduct.
The following assumptions may be applied, unless it is found to be incorrect or there is a serious risk of injustice:
that any property transferred to the defendant at any time after the relevant date,
any property held by the defendant at any time after conviction,
any expenditure incurred by the defendant after the relevant date, for instance luxury holidays,
is tainted or obtained by criminality
and the defendant obtained the property free from any other interests.
If the prosecution is alleging general criminal conduct, it is suggesting that the defendant has been a career criminal and that assets obtained or enjoyed by him or her are tainted or obtained by criminality.
Section 75 of POCA sets out a number of tests that are applied. A person has a criminal lifestyle if one or more tests are met, including whether the defendant has committed specific offences under Schedule 2 to POCA (for example, drug trafficking).
It is assumed that the defendant’s entire income over the previous six years represents the proceeds of crime. With general, or “lifestyle” offences, the prosecution can look at a defendant’s benefit for a period going back six years from the “relevant date”. The relevant date is the day when the proceedings started, usually the date of charge.
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