Proceeds of Crime Act (POCA) Defence Solicitor
If you or your business is subject to POCA proceedings you will need expert legal advice and representation. Our team of Proceeds of Crime Defence Solicitors have the technical knowledge and experience needed to help you achieve the optimum outcome for your situation.
The Proceeds of Crime Act is a complex piece of legislation with potentially far reaching consequences. Investigations can take many months to resolve, and it is vitally important that you have expert advice throughout.
Under the Proceeds of Crime Act (2002), authorities have wide ranging powers to confiscate assets that are considered to have been obtained through criminal activity. It is up to the accused to prove the legitimacy of the funds and assets they hold.
The experienced specialists at Draycott Browne defend individuals in the full range of offences under POCA and are committed to providing the highest standards of service tailored to our client’s needs.
Through our work across all areas of business crime and fraud we have gained experience in cases of the highest value and complexity, gaining invaluable insight, and have consistently achieved positive outcomes over many years.
Why choose Draycott Browne?
If you need expert advice on POCA legislation and proceedings, we can help. Get in touch with our team of defence lawyers today.
- We are experts in dealing with financial crime and POCA cases
- We understand all the complex issues and procedural requirements
- We have an excellent reputation as criminal defence lawyers
- We work regularly with the enforcement agencies
- We secured an acquittal in Liverpool’s longest running fraud trial
We will challenge every assertion the prosecution puts forward, to protect your interests as far as possible both now and in the future.
Our legal team is available 7 days a week. If you or your business need expert legal advice or representation at any stage of an investigation, call Draycott Browne today using the number at the top of this page or complete our contact form and we'll call you back.
When you are facing the stiffest legal challenges, you cannot afford to settle for anything less than Draycott Browne.
What is POCA?
The Proceeds of Crime Act criminalises the use of any asset, such as money, property, or goods, that has been obtained through criminal conduct.
Designed to take the profit out of crime, the two main aims of The Proceeds of Crime Act 2002 (POCA) are to curb money laundering activities and deprive criminals of the proceeds of their crimes.
The Act sets the investigative powers available to the enforcement agencies such as search, seizure, restraint and freezing of assets, and the legislative framework for the recovery of criminal assets.
Having the power to confiscate assets that have been obtained through criminal activity allows the authorities to deny criminals the use of these assets, recover the proceeds, and deter others.
Sections 327-329 of POCA make it a money laundering offence to deal with the proceeds, or ‘benefit’, of crime in the following three broad ways
- concealing criminal property
- entering into an arrangement to keep, use or control criminal property
- possession of criminal property.
In this way, POCA reformed the legislation around the proceeds of crime to cover a wider range of offences including white collar crime, drug offences and money laundering, and made a specific offence of failing to report money laundering in the “regulated” sector which includes banks, financial institutions, solicitors, estate agents, accountants and tax advisors, among others.
If it is believed that an asset was the benefit of criminal conduct then potentially it could be confiscated.
What is criminal property?
“Criminal property” is any property that represents a benefit of criminal conduct.
POCA is regularly used by the police and non-police agencies in order to recover criminal property in a wide spectrum of proceedings ranging from benefit fraud, copyright infringement and rogue trading to tax evasion, bribery and money laundering.
To prove that any property is “criminal property”, the prosecutor must show that:
- The property constitutes or represents benefit from criminal conduct, in whole or in part, either directly or indirectly; and
- The defendant knows or suspects that it constitutes or represents such a benefit [section 340(3)].
Property includes money, all forms of property or real estate, and other intangible assets such as intellectual property, brands, shares or mortgages.
What are the proceeds of crime?
The ‘proceeds of crime’ are the money or assets gained as the result of criminal activity. Usually, the money made from a criminal activity is used to buy assets such as property or cars. This “taints” those assets with the original crime, and they also become proceeds of the crime indirectly.
How are the proceeds of crime recovered?
- Restraint and freezing orders
A restraint order is used to ‘freeze’ or preserve the property and bank accounts of a suspect or defendant at any time from the start of an investigation until its conclusion, to prevent the assets being sold or de-valued prior to a conviction.
Restraint orders may be made against the defendant or person under investigation, and any other person holding realisable property.
- Confiscation orders
A confiscation order is made against a convicted defendant requiring him or her to pay the amount determined by the court.
- Civil recovery
A civil recovery order allows for the recovery of assets without a criminal conviction taking place, but where it can be proven on the balance of probability that the assets were acquired through unlawful means.
- Cash seizures
Cash seizures usually occur at a stop and search by the police, at an international border or at a business premises where the police or customs officer suspects that the money came from or was intended for criminal activity.
- Unexplained Wealth Orders (UWO’s)
Unexplained Wealth Orders (UWO) came into force in January 2018 to help authorities identify and seize property suspected to have been bought by laundered criminal funds, most commonly from foreign sources.
The High Court may, on an application made by an enforcement agency, make an unexplained wealth order (UWO) in respect of any property under suspicion. The respondent is required to explain how the asset was acquired.
If an adequate explanation is not provided, or the evidence offered is unsatisfactory, the asset will be considered “recoverable property” for the purposes of a civil recovery order under POCA.
So far, UWOs have only been used a small number of times but they are expected to become more common.
- Seizures by Border Force & HMRC
Cash and other items can be seized by the UK Border Force, HMRC and other government enforcement agencies at the border under several different pieces of legislation including POCA.
What is a benefit figure?
In seeking to recover the proceeds of crime, the courts will calculate a figure that represents the financial benefits of the crime committed.
However, for the purposes of POCA, it is not the money or property that is actually kept or gained from the criminal activity that matters. It is the money or property that passes through someone’s hands.
For this reason, POCA orders are often made over and above the actual amount that a defendant profited from their criminal conduct.
For example, if a drug dealer sells £5,000 of drugs, his benefit figure will be £5,000 regardless of how much he bought the drugs for.
What is a criminal lifestyle?
Broadly speaking, where the defendant has been convicted of an offence listed under Schedule 2 of the Proceeds of Crime Act 2002, or has benefitted from £5,000 or more over the course of 6 months or more, they are said to have committed a lifestyle offence.
If the tests for a criminal lifestyle have been met, the Crown is able to significantly increase the benefit figure and the effects can be devastating.
If the lifestyle provisions apply the Court is able to assume that anything bought or transferred to the defendant within the last 6 years was obtained as a result of the crime, and the value of these assets will be added to the benefit figure.
The burden of proof is on the defendant to show that a source of income was legitimate.
If you find yourself accused or convicted of a criminal offence and are concerned about the provisions of POCA you should seek the best legal advice available to maximise the possibility of protecting the assets being called into question.
Regulated Sector Offences
It is an offence for business and individuals operating in a regulated sector to fail to disclose suspicions of money laundering discovered in the conduct of their business.
This offence can even be committed even when a person fails to suspect money laundering when they should have done.
Money laundering officers within a regulated organisation fail to make an external disclosure after receiving information that gives rise to grounds for suspicion, may also be liable.
Furthermore, it is also an offence to “tip off” a person that a money laundering investigation is taking place or that a Suspicious Activity Report (SAR) has been submitted.
At Draycott Browne we deal with POCA and money laundering cases in the regulated sector nationwide and have the expertise to deal with the difficult issues that arise.
The POCA Defence Lawyers at Draycott Browne, are widely recognised as one of the North of England's leading team of Criminal Defence Solicitors with specialist fraud, money laundering and business crime expertise.
Contact us today by calling the number at the top of this page. If you would like us to contact you, simply fill in our online enquiry form and a member of the team will be in touch as soon as possible.
We are highly regarded nationally across the legal profession and noted for consistently delivering positive results. Our team possesses a breadth of technical knowledge and experience of POCA Investigations and will provide you with the expertise needed throughout the process.
Our team of Criminal Defence Lawyers regularly act for clients in London and throughout Midlands and of course the North West including clients from Birmingham and Liverpool. By entrusting Draycott Browne, one of the top Criminal Defence Law Firms in the country, you can be assured that you will be working with a team of highly skilled and experienced lawyers who have a thorough and comprehensive knowledge of the law.
Our legal team is available 7 days a week. For expert legal advice or representation, call Draycott Browne today on (0)161 228 2244
When you are facing the stiffest challenge, you cannot afford to settle for anything less than Draycott Browne.