CPIH – Should A More Pragmatic Approach Be Adopted in POCA Proceedings?
If you are facing Proceeds of Crime Act (POCA) proceedings, you may already feel overwhelmed by the complex calculations involved in determining the financial benefit of alleged criminal conduct. Among these calculations is the application of the Consumer Prices Index Including Owner Occupiers’ Housing Costs (CPIH), a measure of inflation increasingly used by prosecuting authorities to adjust benefit figures. But is this approach truly fair?
POCA was designed to strip criminals of their illicit gains, not to impose excessive financial penalties. Yet, the automatic application of CPIH by prosecutors can lead to inflated benefit figures that fail to reflect the reality of your circumstances or the nature of the property involved. This raises the question: is the inclusion of CPIH always proportionate?
Consider this: CPIH is meant to account for changes in the value of money over time. However, delays in POCA proceedings, fluctuations in the actual value of seized assets, or the unique nature of items such as illicit drugs can make applying CPIH seem arbitrary and unjust. In some cases, this approach risks creating confiscation orders that are disproportionate and, arguably, at odds with the legal principles established in key cases like R v Waya [2012] UKSC 51.
In this article, we will explore the use of CPIH in POCA proceedings, examining whether a more balanced and pragmatic approach should be adopted. By understanding the legal framework and potential challenges to CPIH calculations, you can better protect your rights and advocate for fair treatment under the law.
Let’s break down the complexities of CPIH and uncover the arguments for achieving a more just outcome in POCA cases.
What is CPIH?
CPIH stands for Consumer Prices Index Including Owner Occupiers’ Housing Costs. Which is a measure of inflation that includes the costs of owning, maintaining, and living in a home, as well as council tax. The Office of National Statistics (ONS) has used the CPIH as its primary measure of inflation since March 2017.
CPIH and POCA
You will now find that every prosecuting body will apply CPIH when determining any defendants benefit figure derived from Particular Criminal Conduct (PCC) and General Criminal Conduct (GCC). The prosecution will revert to Section 80(2(a)) of the Proceeds of Crime Act 2002 and assert that the value of property obtained by the defendant(s) should be adjusted to take into account of the changes in the value of money. This is done by using the Consumer Pricing Index (Housing) Index.
Is applying CPIH proportionate, and should a more pragmatic approach be taken?
In many cases I see the inclusion or applying of CPIH disproportionate and unfair, I will address my reasons for this as follows.
The purpose of confiscation proceedings is for the Court to make an order requiring the defendant(s) to pay a sum of money equivalent to their benefit (what they have “obtained) from the offence but limited to the “available amount”. A confiscation order is not intended to be a fine and must not be disproportionate as set out in the case law of R v Waya and s.6(5) of POCA.
Therefore, when applying CPIH to a defendant(s) benefit figure certain could be taken into consideration first, such as:
Any delays in concluding the POCA proceedings.
If there has been a substantial delay in the case which has resulted in very substantial increases in the CPIH uplifts sought by the prosecution, regardless who is at fault for the delay, there is a risk that such increases would render any future confiscation order disproportionate.
Where the item has not increased in value with CPIH
If the prosecution have applied the CPIH increase to cash seized or drugs seized from a defendant back sometime ago this can be often challenged as the increase claimed has not actually taken place. Where the cash or drugs have been seized by the Police, and not increased in value, then it can be argued that they have not in reality increased in value.
Increase in the value of drugs via CPIH.
In the situation wherein a defendant’s drugs have been seized, can it be argued that the price of drugs at wholesale, commercial and street level tend not to fluctuate like the value of the pound or value of money in line with the exchange rates and market values. Therefore, is it disproportionate to class illicit drugs to be a commodity and apply CPIH on the same basis as it would be for legitimate commodities. Often an expert can be instructed to support this argument, and show that the value has not increased. This same argument can apply to other goods where the value does not increase in line with CPIH.
Wrapping up
At the final stages of POCA proceedings, the Court will finally be invited to “stand back” and consider whether the figures advanced by the prosecution if accepted by the Court; would result in an order which is disproportionate and so prohibited both by R v Waya and s.6(5) of POCA. This may mean that the quantum has to be reduced to a proportionate figure. The factors at hand were considered by the Court of Appeal in R v Andrewes [2020] EWCA Crim 1055 at paras [77-86]. The statutory objectives of POCA are to deprive criminals of the proceeds of their criminality. Therefore, if a defendant’s case has been subjected to delays (as most POCA cases are, due to the lack of court time) regardless to who is at fault, it is likely that the increase in CPIH applied to the value of a defendant’s benefit figure has resulted in very substantial increases in the CPIH uplifts sought by the prosecution which is possibly not proportionate. To get immediate help and support, please call our office today on 02476 231000 or email enquiries@askewslegal.co
