Defence Solicitors for Confiscation Order POCA Proceedings
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.
If you have been convicted of a crime that you may have made money from, the prosecution can apply for a ‘Confiscation Order’ requiring you to pay it back.
The experienced specialists at Draycott Browne will provide legal advice and guidance throughout the entire process.
Confiscation proceedings are common in crimes such as theft, drug offences, money laundering or fraud. The court will decide how much you made from committing the offence (the benefit), and what resources you have to pay it back (the available amount).
You have the right to challenge the figures put forward by the prosecution but it is up to you to prove it. Our team of expert solicitors can assist you. We are committed to providing the highest standards of service tailored to our client’s needs.
How can we help?
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.
If you or your business is subject to a confiscation order you will need expert legal advice and representation. Our team of Criminal Defence Solicitors have the technical knowledge and experience needed to help you achieve the optimum outcome for your situation.
Confiscation orders are commonly utilised in cases where there is a financial element to the crime. Typical examples include fraud, tax evasion, fraudulent trading, money laundering, bribery and any benefits received as a direct result of a business failing to comply with UK law.
Confiscation proceedings only take place after someone has been convicted of an offence. The purpose of confiscation proceedings is to recover the financial benefits of the crime committed.
Defining the value of the benefit is a critical element of the case for both sides.
The defence usually begins with a statement setting out all the assets owned or controlled by the defendant, along with details of the location and value of those assets. The importance of the statement of means should not be underestimated. Failing to disclose assets can negatively impact the defendant's credibility and invite the hidden assets argument, with damaging consequences for the outcome of the case.
The prosecution will often challenge the ownership and value of the assets, leading to lengthy and complex negotiations involving forensic accounting and auditing.
Ultimately, the court calculates the value of the benefit and orders the defendant to pay back an equivalent amount, or less if a lower amount is available for confiscation. If the sum remains unpaid then a term of imprisonment can be imposed.
We are keenly aware that clients facing confiscation proceedings often stand to lose everything, so our preparation and attention to detail will be of the highest order. The prosecuting authority may also take the view that the offences involved constitute a ‘criminal lifestyle’ under the Act. This is likely if the offence is said to have taken place over a period of six months or more. It means that the court is entitled to assume that any transaction within that period is connected to the proceeds of crime and it is up to the defendant to prove that it isn’t.
As a result, the benefit of crime figure may be much higher than defendants expected.
For example, if some of the proceeds of the crime were used to pay off part of a mortgage, the rest of the property and the entire equity in the property would be considered a benefit of the crime, and not just the mortgage payment figure.
As your defence lawyers, we will meticulously examine the Prosecution’s calculation of the benefit of crime as we fight to protect your assets and your liberty.
Part 5 of the Proceeds of Crime Act, makes the confiscation of assets far easier for the authorities as there is no need for a conviction to be obtained before assets can be recovered. Civil recovery proceedings are usually brought by enforcement agencies, such as the Serious Fraud Office, Crown Prosecution Service, or Revenue and Custom Prosecutions Office, when there is not enough evidence to bring a criminal case, but the court is satisfied that ‘on the balance of probabilities’ the assets are the proceeds of crime.
It is similar to a confiscation order but without the need to obtain a conviction first.
This means that if there is reason to believe that property has been purchased with, or is in any way connected with the proceeds of crime or criminal conduct, one of the authorised agencies can apply to freeze and potentially recover that property. If the investigating agency can prove (on the balance of probabilities) that the property in question was obtained through unlawful conduct then the High Court can make a recovery order.
The order would state that the property has to be handed over to the authorities with vacant possession, within a specified time period, and without any compensation for the dispossessed parties.
Law enforcement agencies often act on a tip off from other agencies or the HMRC where questions may be raised over sources of income, or a lifestyle incommensurate with income declared on tax returns.
Any defence to a civil recovery action must be well constructed with firm evidence put forward at the earliest opportunity. This may result in a freezing order being lifted by consent or the Court discharging it at a much earlier stage.
If you have been accused or convicted of a criminal offence and think you may face confiscation proceedings, you should seek expert legal advice as soon as possible. Contact Draycott Browne today by calling the phone number at the top of this page.
Hidden AssetsThere are two main reasons why the court may come to believe that the defendant has “Hidden Assets”. The first is where an identifiable asset from the crime was never recovered. The Crown can assert quite simply that the defendant must account for the whereabouts of the asset. The second is where the circumstances of the defendant’s finances mean the Court can make no other inference other than that the defendant must have hidden assets. For example, if no legitimate income can be found to support the lifestyle a defendant has been living, it will be assumed that there are hidden resources.
If these assertions are unchallenged the defendant will be ordered to pay an amount that they cannot afford which will lead inevitably to a prison sentence.
What is a benefit figure?
In confiscation proceedings, the benefit figure is the value of the money and property that has passed through the defendant’s hands over the course of the criminal activity.
It is essentially the turnover, not the profit.
Furthermore, if you are convicted of an offence specified in Schedule 2 of the Proceeds of Crime Act, the court is entitled to infer that you have benefited from a ‘criminal lifestyle’ and that any of your unexplained income is from crime.
For example, if a defendant was found guilty of a £10,000 fraud but has also had £100,000 paid into her bank accounts over a six year period and had bought a new car worth £30,000 without any evidence of a loan or a trade-in vehicle, it will be assumed that the money came from crime and the benefit figure would be £140,000.
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, including drug dealing, money laundering, people trafficking, terrorism, counterfeiting or blackmail, 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.
What is the ‘available amount?’
If the Court decides that the defendant has benefited from criminal conduct, it will determine the ‘recoverable amount’. This is an amount equal to the defendant’s benefit, or the “proceeds of crime”.
If a defendant can establish that he does not have the recoverable amount, he can be ordered to pay a lesser amount based on what he does have. That sum is the ‘available amount’, and that order is also known as a confiscation order.
What if I don’t pay the confiscation order?
There is usually a time limit of 3 months after the order being made for the available amount to be settled, which can be extended for a further 3 months in certain circumstances. Failure to do so means the defendant faces a prison sentence.
The prison sentence does not replace the amount owed however. It continues indefinitely with interest accruing at 8% until it is discharged by full payment.
What if I come into money in the future?
If the benefit figure is significantly higher than the available amount at the time of making the confiscation order, the prosecution reserves the right to revise the confiscation order at any future time if the defendant’s financial circumstances change.
If a defendant inherits money, or increased house prices means they have accrued equity in a property, the prosecution reserve the right to recover additional funds towards the benefit figure under section 22 of the POCA.
In this case, the confiscation order is adjusted upwards and a further period of time to pay is ordered with a new period of imprisonment in default.
If you are unfortunate enough to be the recipient of an application under s22 you should seek expert legal advice. The applications can be objected to on the basis that they are unjust or unfair, especially if the prosecution tries to make repeated applications.
The POCA Defence Lawyers at Draycott Browne, are widely recognised as one of the North of England's leading team of Confiscation Order 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 confiscation proceedings 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 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.