It is widely accepted that the Proceeds of Crime Act (POCA) is a highly complex area of law.
What many people facing these proceedings are unaware of is that whereas the burden of proof for the primary offence is on the prosecution to prove guilt, for the purpose of POCA proceedings the burden of proof is on the defendant.
The primary concern of confiscation law is to establish exactly how the defendant has benefited financially from their criminal conduct. Once this figure has been established the focus shifts to identifying all the realisable assets which the defendant has in order for them to pay back the benefit figure.
This process is very important, as if the Court feels a defendant is trying to hide assets then an Order including ‘hidden assets’ can be made.
Where there is no allegation of hidden assets and a defendant’s realisable assets are lower than the benefit figure, a Confiscation Order will be made for the amount of the realisable assets. In these circumstances the realisable asset figure will be the amount which has to be paid by the defendant under the terms of the Confiscation Order.
Unfortunately this is not always where proceedings end. Under Section 22 of the Proceeds of Crime Act if, in the future, a defendant was ever to come into money, for instance if they were to into inherit a large sum of money or to win the lottery, then the prosecution has the authority to apply for the amount of the defendants realisable assets to be increased to the full amount of the benefit figure.
The judgment handed down in December 2013 on the case of R v Padda demonstrates that even six years after a Confiscation Order is made it is entirely lawful for the prosecution to ask that the Court to reconsider the defendants available assets. It also establishes that legitimately obtained assets can be used to satisfy a Confiscation Order.
The need for expert POCA solicitors is of overwhelming importance to anyone facing POCA proceedings as not only is it a highly complex area of law with the burden of proof being on the defendant, but the implications of the Act are far-reaching and can potentially be everlasting.
Whilst facing POCA proceedings, it is paramount that your legal team does everything within its power to ensure the purported benefit figure is reduced as much as possible before the final order is made. It is also imperative that they obtain correct figures in relation to valuations of assets as these go to form your realisable/available assets.
Finally, it is vital that you instruct specialists who have extensive knowledge and experience in this area of law as unless the full sum of your benefit figure is satisfied there is always the potential for the prosecution to make a section 22 application many years after the Confiscation Order was initially made.
At Stephensons we have a dedicated team of experts led by partner Rachel Adamson on hand to deal with all aspects of your confiscation proceedings. Indeed many clients transfer to us after they have been convicted in order for us to specifically deal with their confiscation proceedings.
By Lucy Cohen, serious fraud team
Should you require and advice or information on any current or pending confiscation proceedings please do not hesitate to contact us on 01616 966 229.