If you are convicted of a criminal offence – whether a financial crime or otherwise – the prosecution may begin proceedings under the Proceeds of Crime Act (POCA) 2002. If successful, this would see that any assets thought to be acquired via illegitimate means are confiscated. A failure to pay will result in a prison sentence.
Defence solicitors London
If you are subject to POCA proceedings, please contact us straight away at Ashmans Solicitors. The authorities have wide-ranging powers that allow them to freeze and confiscate assets. A timely and proactive approach is required to limit the potentially disastrous consequences. We represent clients across England and Wales. We are available to take your call 24 hours a day, 7 days a week.
About the Proceeds of Crime Act 2002
The Proceeds of Crime Act is, as the name suggests, a legal mechanism that allows the authorities to recover ‘the proceeds of crime’. This can be anything thought to have been purchased or obtained via criminal activity. For example, if someone is convicted of credit card fraud, it may be assumed that their property has been purchased using fraudulently obtained income. Under POCA, prosecutors are permitted to pursue these assets and confiscate them on a permanent basis.
Before POCA was implemented in 2002, the Crown Prosecution Service (CPS) had limited powers of confiscation. Now, however, the forfeiture of assets has been extended to include offences ranging from drug trafficking to financial crime.
When will I face POCA proceedings?
Under POCA, the authorities can issue a restraint order while you are under investigation. This will happen if there is any indication that you have benefitted financially from a crime. A restraint order freezes your assets, preventing you from transferring funds or accessing your finances. The authorities do this to avoid the dissipation of assets, keeping them intact for a future confiscation order.
Restraint orders can be crippling, as you will be unable to access any money or conduct your business. In turn, this can impact connected third parties. If this has happened to you, you can ask for the restraint order to be discharged or varied. Our defence solicitors can help you with this application.
If your case proceeds to trial and you are convicted, the authorities may then pursue a confiscation order. Again, this is available under the Proceeds of Crime Act 2002. However, this is only permitted if you are found guilty and you are deemed to have had a ‘criminal lifestyle’. This is when a criminal offence took place over a period of six months or more.
What can be confiscated?
Any asset that you acquired during the six years prior to the start of proceedings is open to confiscation. The court can assume what assets were obtained during this period using the proceeds of crime. This can include property, vehicles, equipment and business assets.
You will not necessarily have to hand these assets over, although cash in excess of £1,000 can be seized by the police. If a police search does result in the seizure of cash assets, it will be retained by the authorities until you can prove that it was procured through legal means.
Otherwise, you will be asked to pay a lump sum of money based on the value of the acquired assets. To enable this calculation, you will be asked to disclose your assets in full. The authorities can then see what assets you have. This is called the ‘available amount’.
The court will then consider the value of the criminal benefit, making assumptions as to what assets have been obtained through illicit means. This is called the ‘benefit amount’. The benefit amount can include any assets that are tainted by criminal behaviour. For example, if you purchased a property using the proceeds of crime, the equity of the property is also linked to the proceeds of crime – and is, therefore ‘tainted’. This can increase the benefit amount considerably.
If there is any discrepancy between the available amount and the benefit amount, you will be asked to explain the shortfall. If a sufficient response cannot be produced, the court may accuse you of deliberately hiding or undervaluing assets. The terms of the confiscation order will reflect this supposed deception.
What happens if I do not comply with the confiscation order?
If you are subject to a confiscation order, you will be told to pay a set sum of money by a particular date. Usually, this is three months after the order is made, however, upon application this can be extended by a further three months. If you fail to meet this demand, enforcement proceedings will be issued. If the payment remains outstanding, there will be a default prison sentence. The length of the sentence will reflect the sum to be repaid. In other words, the higher the figure, the longer the sentence will be.
Unless you pay the amount in full, the confiscation order lasts for the duration of your lifetime. So, if you acquire assets in the future – even if it is via legitimate means – you may have to put them towards the payment of the order.
Defending POCA proceedings
The consequences of POCA proceedings can be devastating. Restraint orders can leave you in limbo, and if cash assets are seized, you may lose a substantial sum of money. If you are also subject to a confiscation order, you may have to sell assets or even go through receivership to fulfil the payment. It is therefore vital that you defend any POCA proceedings that are pursued against you.
If you have recently been through a criminal trial, you may know that the prosecution has to prove your guilt ‘beyond reasonable doubt’. However, the onus is reversed in POCA proceedings. So, if the court decides that your assets were obtained using the proceeds of crime, it is up to you to prove otherwise.
This is a high burden of proof and it is not easily established. Nevertheless, it can be achieved with the right strategy. Because of this, we do not recommend that you defend POCA proceedings on your own. Instead, you need a solicitor who is well-versed in the Proceeds of Crime Act and confiscation orders.
A solicitor can help you to present an audit trail, and repatriate assets if needed, in order to prove your defence. A forensic accountant can be instructed to establish the true value of your assets, ensuring they are not counted twice – which would then increase the benefit amount. It may also be possible to challenge the ownership of assets. Together, this evidence may be enough to bring an end to proceedings or to reduce the amount payable.
Further remedies can be sought, even once a confiscation order has been issued. This includes:
- Submitting an application to extend the deadline for payment
- Requesting a confiscation order be varied
- Appealing a confiscation order
Defence solicitors London
If you are facing proceedings under the Proceeds of Crime Act 2002, please contact us at AshmansSolicitors. Our defence solicitors are highly experienced in dealing with cases involving restraint orders and confiscation orders. We can represent you throughout proceedings, fighting hard to protect you and your assets.
For a free initial enquiry, call us now on 0333 009 6275. We are available 24 hours a day, 7 days a week.