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.
To contact our confiscation law solicitors, please phone our office on 0207 281 1001. You can also email us at firstname.lastname@example.org