A number of people have contacted us recently asking about the impact of confiscation orders on other aspects of prison. If you have a confiscation order there are implications for things such as recategorisation, ROTL and HDC, particularly if you have defaulted and are currently serving the default term. People report difficulty getting to open conditions, finding that their ROTLS are refused or that they are taken back to closed conditions if they default.
This article explains more about the rules regarding confiscation orders.
Categorisation and open conditions
Both PSI 16/2010 Confiscation Orders and PSI 40/2011 Categorisation and Recategorisation Of Adult Male Prisoners are clear that being subject to a confiscation order does not automatically prevent you being categorised for or getting moved to open conditions. However, the prison will have to consider the impact of the order when assessing risk, particularly on the risk of abscond. They will consider whether you are in default, how much is outstanding, your ability and willingness to pay it, the amount of time to be served if not paid and whether you may have hidden money or other assets abroad. If you are considered to be at high risk of absconding for these or any other reasons, you will not be categorised for open conditions. The prison is expected to get information from relevant enforcement agencies to help make their decision.
If your confiscation order is enforced whilst you are in prison you will normally have your security category reviewed, as this is considered to be ‘a significant change of circumstances’. PSI 40/2011 says that enforcement of a confiscation order ‘may necessitate recategorisation to a higher security category’. Again, this is not automatic and the prison should take into account the full circumstances to make the decision, as above.
Release on Temporary Licence (ROTL)
If you are detained in default of a confiscation order you are still eligible to be considered for ROTL. PSI 13/2015 Release on Temporary Licence (ROTL) says that those detained in default of a confiscation order need ‘special consideration’ when making ROTL decisions. The PSI instructs that ‘the usual risk assessment must be undertaken, giving particular consideration to the risk of absconding in light of impending proceedings or the presence of the unpaid confiscation order, taking account of the individual circumstances of each case’. The prison must get input from the regional HMCS Confiscation Unit if your confiscation order is yet to be paid or if you are in default.
Home Detention Curfew (HDC)
If you are currently detained in default of a confiscation order you are not eligible for HDC. This is because you are classed as serving a ‘term of imprisonment’, whereas HDC only applies to people serving a ‘sentence of imprisonment’.
If you are currently serving the initial criminal sentence you might be able to get HDC for that part of the sentence, if you would otherwise be eligible and suitable. If your confiscation order has not yet been enforced you could be released on HDC, but the prison must postpone the decision if it thinks there is unacceptable risk that you will not comply with the order of the court. The prison will consult with the prosecuting/enforcement authority and regional confiscation unit to assess this. Information about this is included in PSI 01/2018 Home Detention Curfew.
If your confiscation order has been enforced and the default term is due to commence when you have served the initial sentence, you may still be able to get HDC on the initial sentence and start the default term sooner. This means your default term would start on you HDC eligibility date (HDCED), if you have been granted HDC by that date, or on the date of the decision if it is made after this date.
Early Removal Scheme
As with HDC, the Early Removal Scheme only applies to those serving a sentence of imprisonment, so if you are currently detained in default of a confiscation order you will not be able to get this. If you are serving custodial time for the original offence but have an outstanding confiscation order, you will not normally be granted early removal either, though PSI 04/2013 The Early Removal Scheme and Release of Foreign National Prisoners says an exception can sometimes be considered, for example if you are serving a long sentence and the amount of money owed is relatively small.
If you are detained in default of a confiscation order you cannot be given additional days as the result of adjudications procedures.
Please note, the above article focuses on prisons in England and Wales and may not apply elsewhere.