Proceeds of Crime Act
The Proceeds of Crime Act 2002 (‘POCA’) sets out the legislative scheme for the recovery of criminal assets. If the Prosecution believe that a defendant has benefitted financially from their crime, they will begin confiscation proceedings against them. The purpose of the proceedings is to ensure that a defendant does not benefit from the proceeds of their crime by ordering them to repay any proceeds of crime. If the court decides that the defendant has benefitted from their crime, they will determine the amount of benefit as well as the defendant’s available assets and will make an order accordingly.
Confiscation Proceedings are complex and the sole aim is to deprive the defendant of any criminal benefit. The Prosecution’s approach can be seen draconian and unfair to a defendant.
Proceedings are commenced following a criminal conviction. The burden falls on the defendant to establish the legitimacy of their assets in the face of prosecution assertions and statutory assumptions. This often requires a meticulous and careful analysis of bank statements and financial documentation leading often to the instruction of forensic accountants.
The ‘benefit’ is calculated by the Prosecution allocated Financial Investigator who will assert a figure based on the specific value of the criminality and/or criminal lifestyle. In calculating the benefit figure he will undertake an analysis of the defendant’s assets and expenditure over the previous six years.
The Financial Investigator will then consider a defendant’s available assets and calculate a recoverable amount which must be paid within a specified period and failure to do so will lead to a prison sentence in default.
Financial Investigators are notorious for inflating their assertions in respect of the alleged benefit figure and often grossly exaggerate the value of the assets available to meet the benefit figure.
Our aim is to work skilfully and tirelessly to reduce the benefit figure and provide realistic values on what is actually available to meet a confiscation order. This requires us to methodically examine and aggressively challenge the veracity of the Financial Investigators assertions.
Even if a prison default term is served, the amount owed is not extinguished and remains payable with interest accruing. The confiscation amount and any interest accrued can be pursued indefinitely until it is discharged by full payment.
The defendant can, in exceptional circumstances, apply to the Court for a ‘certificate of inadequacy’ to discharge the order.
It is therefore crucial to have an experienced solicitor to prepare your defence strategy. Our confiscation solicitors will analyse your case in detail and will work to ensure that the end result is as fair and proportionate as possible.
A person who is deemed to be a ‘third party’ such as a spouse, cohabitee, associate or business party will often also require legal representation.
The Serious and Organised Crime Strategy set out a number of proposals to strengthen POCA in an effort to combat issues in relation to third parties. Legislation has been implemented to ensure that assets could not be hidden with spouses, associates or other third parties. The Serious Crime Act 2015 seeks to give effect to this strategy.
This means that the only way a third party might otherwise assert an interest in property is to be called as a witness by the defendant in the course of the confiscation hearing itself.
The Serious Crime Act 2015 allows the Crown Court to make a determination as to the extent of a defendant’s interest in particular property. Given that such a determination will also determine the extent if any of a third party’s interest in that property the Act affords the latter a right to make representations as to the extent of their asserted interest.
Third party’s may be adversely affected by confiscation proceedings even though they have not been involved in any criminal activity.
Our aim is to protect their interests in such situations and to do all we can to protect their assets.
Restraint and Cash Seizures
The Proceeds of Crime Act 2002 (‘POCA’) enables the Prosecution to freeze an individual’s assets. They do so by applying to the court for a Restraint Order. A Restraint Order will freeze property that may be subsequently confiscated. If you are served with a Restraint Order, you will need to receive specialist legal advice as a response will usually be required.
Non-conviction Based Asset Recovery
POCA allows for non-conviction based asset recovery where assets can be pursued by the authorities despite there being no criminal proceedings or conviction. Examples of this include civil recovery, cash forfeiture, forfeiture of certain personal (or moveable) property and forfeiture of money held in bank and building society accounts.
You may be subject to an unexplained wealth investigation and are required to attend an interview compelled by Disclosure Orders. The Criminal Finances Act 2017 gives enforcement agencies such as the National Crime Agency, HM Revenue and Customs, the Financial Conduct Authority and the Serious Fraud Office new investigative powers. The Act gives the High Court the power to grant an Unexplained Wealth Order where there is a suspicion that an asset could not have been purchased using lawfully obtained income.
If you face civil asset recovery proceedings then you need expert advice which our specialist team is able to offer.
To contact our confisacation team, please phone our office on 0207 281 1001. You can also email us at email@example.com