Crime Doesn’t Pay (If You Can Actually Catch the Cash)

Fatima Jama provides an overview to the Ministry of Justice’s Independent Sentencing Review final proposals for addressing financially motivated crime: monitoring, recovery, and punishment.

Introduction

David Gauke argues that age-old saying that “crime doesn’t pay” has long rung hollow for financially motivated serious criminals who treat prison sentences as temporary business interruptions. However, in his Independent Sentencing Review – Final report and proposals for reform (the “Review”), the former Conservative Justice Secretary makes recommendations to make that phrase finally mean something.

In an examination of England and Wales’ sentencing framework, the Review, amongst other things, proposes reforms specifically addressing serious financially motivated crime through new innovative approaches and improving current frameworks.

The Review observes the current limitations of custodial sentences when dealing with serious financially motivated offenders: “For some serious and organised criminals motivated by financial greed, imprisonment is seen as part of their career journey if they can manage their criminal enterprise from within the prison or return to their wealth in the community on release”. The Review notes the fundamental problem in modern criminal justice: traditional imprisonment, whilst serving important purposes of punishment and public protection, often fails to address effective prevention for financially motivated offenders. The Review underlines the need for more sophisticated and comprehensive approaches to punishing, deterring and disrupting those offenders beyond the traditional model of imprisonment alone.

Serious Crime Prevention Orders

The Review’s first recommendation for tackling serious financially motivated crime focuses on strengthening existing mechanisms such as Serious Crime Prevention Orders (“SCPOs”). Currently, these orders can be imposed for a maximum period of five years and are designed to protect the public by preventing, restricting or disrupting involvement in serious and organised crime. However, the Review identifies a gap in their application.

It is common for courts to delay the commencement of SCPOs until an offender’s release from prison. The Review argues this approach is fundamentally flawed: it “does not target serious and organised criminals who continue their activities from inside prison.” This observation reflects an understanding of how modern criminal enterprises operate, often with command structures that can function regardless of whether key figures are incarcerated.

The Review’s recommendation is to extend SCPOs to apply “for the duration of an offender’s time in custody as well as for five years after release” represents a strengthening of the state’s ability to monitor and restrict criminal enterprises. Law enforcement professionals who contributed to the Review highlighted the potential of this approach to “reduce offending and reoffending” and “encourage proactive and targeted restrictions on offenders within the prison system who currently carry on offending in prison.” It is argued that this extension would enable closer monitoring of bank accounts and business dealings throughout the entire period of an offender’s sentence, potentially disrupting criminal enterprises at their most vulnerable point when key leadership is incarcerated. The Review suggests this could also facilitate greater asset recovery through enhanced surveillance and may even “help bring to justice those criminals who facilitate serious and organised crime but are sometimes never prosecuted in law, as connections between organised crime groups may be further exposed through the monitoring.”

The fundamental enforcement reality of SCPOs provides both strength and reveals underlying tensions. Breaches of SCPOs constitute criminal offences that can result in consecutive sentences, creating leverage over imprisoned offenders. The framework operates on the principle that offenders must comply with disclosure requirements and other restrictive terms or face extended imprisonment. This enforcement mechanism can strategically isolate members of organised crime groups, forcing them to either step back from criminal activities or reveal information valuable to law enforcement.

Despite the robust enforcement framework, a fundamental tension remains. The Review acknowledges that serious criminals continue operating their enterprises while already imprisoned and subject to existing criminal penalties for continued offending. If physical incarceration combined with existing criminal law sanctions has proven insufficient to prevent continued criminal activity, the effectiveness of additional legal prohibitions becomes questionable.

The key issue is whether the threat of consecutive sentences for SCPO breaches provides meaningfully greater deterrence than existing criminal penalties for the substantive offences these individuals are already committing from prison. While SCPO violations may be easier to prove and prosecute than complex ongoing criminal enterprises, the proposal still fundamentally relies on the assumption that offenders who have demonstrated willingness to continue criminal activity despite current imprisonment will be deterred by the prospect of additional custody time.

The proposal raises practical questions about how SCPOs would operate within the prison environment and whether the existing prison monitoring and restriction systems provide adequate infrastructure to effectively enforce the additional obligations. The success of this approach would depend heavily on whether the specific, defined consequences of SCPO breaches prove more effective at disrupting criminal enterprises than the broader criminal law framework that has already failed to contain these activities during imprisonment.

Confiscation Orders

While acknowledging that confiscation orders represent “the principal means by which the Government can deprive criminals of the proceeds of their crime,” the Review does not shy away from highlighting the enforcement challenges that have undermined their effectiveness. HMCTS data reveals that “the total historic value of outstanding confiscation balances estimated to be recoverable on 31 March 2024 was £214 million, compared to a gross debt owed to HMCTS of £2,747 million.” This gap between what is theoretically recoverable and what is actually owed highlights the current system’s failure to ensure that crime does not pay. The Review attributes this poor performance to multiple factors, including cases where “assets have been hidden or held overseas, and where interest continues to increase the outstanding balance.” The complexity of investigating money laundering offences and tracing criminal assets often leads to “lengthy and resource intensive confiscation investigations,” creating a system where criminals can often outlast the state’s determination to recover their ill-gotten gains.

However, the Review notes that the Proceeds of Crime Act 2002 acts as a “force multiplier” that not only reduces criminal motivation but also “provides an avenue to reinvest criminal money back into the asset recovery system and a mechanism to compensate victims.” The economic argument is that given the substantial value of outstanding confiscation balances, strategic investment in modernising technology and enhancing enforcement capabilities could prove both cost-effective and financially beneficial to the public purse.

Criminal Receivership

The Review also proposes to establish a criminal receivership scheme. This concept draws inspiration from the precedent of criminal bankruptcy whilst adapting it for modern criminal enterprises:

“The concept of criminal bankruptcy has historical precedent and compels the redistribution of someone’s assets. Originally introduced in the Criminal Justice Act 1972, it was designed to be both an imaginative advance in victim compensation and a buttress to the deterrent aim of traditional criminal sentences. Criminal bankruptcy was later replaced by confiscation orders under the Proceeds of Crime Act 2002.”

The Review explains that criminal receivership would be “aimed at criminals who have gained significant wealth from their crimes” and would involve a receiver managing or selling “the offender’s assets in satisfaction of the order.” Crucially, this model would allow “the seizure of assets over any time frame without granting debt relief, ensuring the measure remains an appropriate form of punishment rather than support.” This approach addresses a weakness in the current confiscation system by removing the offender’s ability to choose which assets to liquidate. As the Review notes, “unlike in confiscation orders, criminal receivership would give no opportunity from the outset for the offender to choose what assets they sell.” This represents an enhancement of state power to ensure that criminal proceeds are actually recovered rather than merely theoretically identified. The Review’s vision for criminal receivership extends beyond simple asset recovery to encompass broader objectives of deterrence and disruption. The scheme would aim to “penalise offenders by targeting the motives behind their criminal activities, enabling the Government to seize both illegally and legally earned money, ensuring that committing crime does not pay.” This holistic approach recognises that serious financially motivated criminals often intermingle legitimate and illegitimate assets in ways designed to frustrate traditional asset recovery mechanisms.

Building on the core concept, the Review also proposes suspended criminal receivership. This would function similarly to suspended prison sentences, creating incentives for compliance with court orders whilst holding the ultimate sanction in reserve. Under this proposed scheme, “courts could impose suspended criminal receivership as a condition at sentencing to ensure compliance with fine payments, confiscation orders, and other court orders, including ancillary orders.”

The Review notes that psychological and practical impact of this approach could be transformative, as offenders would face the immediate prospect of total financial asset forfeiture if they failed to comply with any aspect of their sentence. The Review suggests that “if the offender fails to comply, receivership proceedings would be triggered, stripping them of all their financial assets.” This creates a constant threat hanging over those who do not comply, which could improve how well serious financially motivated criminals comply with financial penalties and court orders. The Metropolitan Police’s input to the Review emphasised that “a suspended element is helpful to identify engagement with orders and support attempts to change when an offender is demonstrating positive behaviour.” This observation highlights how suspended criminal receivership could serve rehabilitative as well as punitive purposes, rewarding genuine attempts at compliance whilst maintaining the credible threat of total asset forfeiture for those who persist in non-compliance.

Challenges and considerations

The Review acknowledges that these proposals represent departures from current practice and would require careful implementation. The criminal receivership concept, whilst drawing on historical precedent, would need “further work to establish how criminal receivership could be implemented effectively, including ensuring that the right offenders are targeted by the model.” The Review emphasises the importance of ensuring that these new tools are deployed proportionately and effectively. There are legitimate concerns about ensuring that criminal receivership targets genuine serious criminals rather than becoming a blunt instrument applied inappropriately to lesser offenders. The Review suggests that implementation should focus on “criminals who have gained significant wealth from their crimes,” indicating an intention to reserve these measures for the most serious cases.

Resource implications also require careful consideration. Whilst the Review argues that enhanced asset recovery could ultimately prove financially beneficial, the initial investment required to establish effective receivership mechanisms would be substantial. The need for specialised legal frameworks, trained personnel, and robust oversight mechanisms would represent a significant upfront cost to the public purse.

The broader context

These recommendations must be understood within the broader context of the Review’s findings about the sustainability of current sentencing practices. The Review notes that “the measures proposed by this Review, if implemented in full, should meet the challenges” of reducing prison population pressures whilst maintaining effective deterrence and public protection. For serious financially motivated criminals specifically, this represents a shift from a model primarily dependent on imprisonment towards a more sophisticated approach that directly targets the economic incentives driving criminal behaviour. The Review’s recommendations recognises that serious financially motivated criminals often operate with different risk-reward calculations than other offenders, requiring correspondingly different and more targeted interventions.

The economic argument for these reforms extends beyond simple cost-effectiveness to encompass broader questions of social justice and resource allocation. If they ensured more effective recovery of criminal proceeds, these measures could provide additional funding for victim compensation, crime prevention programs, and further investment in law enforcement capabilities.

Conclusion

The Review’s central insight, that traditional imprisonment alone is insufficient to deter serious financially motivated criminals, demands innovative responses. By directly targeting the financial infrastructure that supports and motivates these individuals, the Review highlights that these proposals offer the prospect of making crime genuinely unprofitable in ways that conventional sentences cannot achieve. As the Review concludes, “Government should use imprisonment alongside more effective financial interventions to target serious and organised criminals and their ill-gotten gains, ensuring that committing crime does not pay and that justice is served both inside and outside prison.” This holistic vision of justice, combining traditional punishment with sophisticated financial disruption, may prove to be the key to finally ensuring that, in the realm of serious financially motivated criminals at least, money truly cannot buy criminals their freedom from consequences.

The success of these proposals will ultimately depend on implementation, resources, and political will. In an era where financial crime increasingly operates through sophisticated means, such innovative approaches may prove essential to maintaining the rule of law and public confidence in the justice system’s ability to ensure that crime does not pay.