At Stephensons we are often requested to take over POCA cases after there has been a conviction so that we can deal with the confiscation proceedings. Our reputation in this area is growing and we are often recommended by those we are already representing. We owe this to a large extent to the reputation we have for dealing with high profile appeal cases and human rights matters. We deal with cases nationwide and have the expertise to deal with the difficult issues that arise in these proceeds of crime cases.
When the Proceeds of Crime Act 2002 (POCA) came in there was a huge upsurge in confiscation proceedings. Prior to that, confiscation proceedings had been limited to the powers under the Criminal Justice Act 1988 and the Drug Trafficking Act 1994. POCA extended the confiscation powers to financial crime and gave the Courts wide ranging powers to confiscate assets and to make ‘assumptions’ as to how certain assets had been obtained. If an asset was said to be the benefit of criminal conduct then potentially it could be confiscated. The Court then looks to the available amount to find out what assets are held and the value of those assets. A confiscation order can be made in the sum of the benefit of criminal conduct or the sum of the available amount; whichever figure is the lower. If this sum remains unpaid then a term of imprisonment can be imposed for non-payment. POCA also introduced a series of criminal offences relating to money laundering.
Confiscation proceedings only take place after someone has been convicted of an offence. More often than not the prosecuting authority will take the view that the offences involved constitute a ‘criminal lifestyle’ under the Act. This means that the Court can consider any items or acquisitions from the 6 years preceding the date of the commencement of the proceedings. If the Court considers that those items have been acquired wholly or partly with the proceeds of crime then it is taken to be a ‘benefit of crime’.
As a result of this the benefit of crime figure may be much higher than you first think. An example of this would be if some of the money gained from the crime is used to pay off part of a mortgage. This payment would then ‘taint’ the rest of the property and the entire equity in the property would be a benefit of the crime not just the mortgage payment figure. At Stephensons we do not simply accept the prosecution’s view of the benefit of crime and ensure that the figures are meticulously challenged. We often instruct forensic accountants to assist with this to counter problems such as ‘double counting’ of assets. We always have it in mind that the higher this figure is, then the higher a possible term of imprisonment could be if there is a non-payment following a confiscation order. Our clients’ liberty is paramount.
We believe that for anyone facing confiscation proceedings it is important that the legal team has the requisite experience to ensure that our clients’ liberty is protected. This may include detailed knowledge of issues such as trust funds, pensions, overseas assets and third party interests. Our team at Stephensons has expertise in all areas pertaining to financial asset recovery and rest assured that we will fight to protect those assets that should not come within these orders.
We have the skills to deal with all manner of cases ranging from very low value to very high value.