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Proceeds of Crime Act (POCA) & confiscation

We have a team of expert fraud lawyers experienced in dealing with cases involving confiscation orders under the Proceeds of Crime Act 2002 (POCA). At Stephensons we often receive requests to take over 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, civil liberties matters and human rights in general. We deal with cases nationwide and have the expertise to deal with the difficult issues that arise in these cases.

Our experienced lawyers have the expertise and knowledge to look at the required level of detail to defend you. Contact us on 01616 966 229 or complete our online enquiry form.

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Confiscation proceedings

When 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 can be done if the offence was said to have taken place over a period of six months or more. This means that the court can consider any items or acquisitions from the 6 years preceding the date of the commencement of the proceedings. The court is then entitled to assume that any transaction within that period is the proceeds of crime and it is up to the defendant to prove that it isn’t. 

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.

How can we help?

Our solicitors have an excellent track record for getting the benefit figure reduced. We keep up to date with any changes on the law to ensure we have every opportunity to argue that the prosecution have their figures wrong. We believe that recent case law (R V Waya) assists us in trying to achieve proportionality in these proceedings. 

It is often the case that a defendant does not have any assets and so initially is not concerned about POCA. We still fight the benefit figure even in those circumstances to protect any future assets. Often defendants are unaware of the fact that confiscation order lasts a lifetime and if the defendant were to get any assets in the future then the prosecution can apply to the court to take any future assets into account. This means that you are never safe until you have paid the entire benefit figure. This is why it is important to challenge every aspect of the prosecution’s assertions so that if you have a windfall in the future it can be protected. 

'Hidden assets'

Another issue that is often a surprise to a defendant is the issue of ‘hidden assets’. If the benefit of crime figure is far higher than the available assets then it is for the defendant to account for the shortfall. It is open for the court to say that any difference is as a result of the defendant hiding the proceeds of crime. If the court takes the view that a defendant has siphoned off money elsewhere in order to hide it then the court can make a confiscation order reflecting that regarding of the fact a defendant has no assets on the face of it. In order to prevent this happening it is extremely important for a pro-active approach to the confiscation. At Stephensons we always ensure that every transaction as far as possibly is accounted for to reduce the risk of having a ‘hidden assets’ finding against you.

Expert legal advice

We believe that for anyone facing such 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. In respect of high value cases it is paramount that your Solicitor has the requisite commercial knowledge in order to protect you as far as possible.

Our experienced team of fraud lawyers has the expertise and knowledge to look at the required level of detail to defend you. Contact our expert fraud solicitors on 01616 966 229 or complete our online enquiry form.

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