Following the introduction of the Proceeds of Crime Act 2002 (POCA) there has been a dramatic increase in the amount of confiscation proceedings for people convicted of criminal offences.
Historically, confiscation proceedings had been limited to those offences defined under the Criminal Justice Act 1988 and the Drug Trafficking Act 1994. However, POCA then widened the courts powers for confiscation to include financial offences also. Importantly it also allowed the courts to make “assumptions” about how the property of a convicted person had been obtained. If it was deemed by the court that an asset had been the result of criminal activity then it was available for confiscation.
When a confiscation order is made it will look at the financial circumstances of the convicted person in 2 ways. The first is the benefit figure, the amount the convicted person has made from the enterprise(s). The second is the available figure and that means the realisable amount that is available for confiscation. On examining these 2 figures the court will make the confiscation order for the lower of the 2.
It should be noted that once the confiscation order is made, non payment of that order can incur a prison sentence in its own right. It can also mean that if the convicted person has already been given a prison sentence then any further period of imprisonment is to run only after the original sentence has been completed.
Confiscation proceedings only take place after a person is convicted of a criminal offence. The prosecution will then analyse the offence and the convicted person, and assess whether or not the offence formed part of a “criminal lifestyle” as defined by POCA. This is normally done if the offence or offences were carried out over a period of 6 months or more. If it is deemed that confiscation proceedings are triggered then the prosecution can examine the assets of the convicted person for a period of up to 6 years previous.
Worryingly, it is the nature of confiscation proceedings under POCA that all transactions within the period that are before the court are deemed as being fraudulent and it is up to the defendant to prove that they are legitimate and lawful. This shifts the burden of proof from the prosecution to the defendant.
This means that it is vital all financial aspects and transactions for the defendant are properly examined and challenged. It is not unusual in confiscation proceedings for expert forensic accounts to be instructed instructed, to give your defence team a clearer view of the prosecution’s case and ensure that matters are dealt with fairly and to get the best possible result.
If it is the case that at the time of the confiscation hearing the defendant had no assets then, making such challenges to the prosecution evidence and assertions would seem unnecessary. This is not so, as a confiscation order lasts a life time and should the defendant gain assets in the future, the prosecution have the power to apply to the court to have those new assets seized.
A further aspect of confiscation proceedings under POCA is that of “hidden assets”. If the benefit figure is much higher than the realisable amount then the defendant may well be made to account for such a shortfall. If the court rejects the explanation given by the defendant over the shortfall then it may infer that there are hidden assets that the defendant is unwillingly to inform the court about. If this is the case the court can make an order reflecting the aspect of hidden assets and therefore the confiscation order will be higher than merely the realisable assets.
POCA and confiscation proceedings are very complicated and fraught with technicalities. If you are facing an offence under POCA or confiscation proceedings following a conviction it is vital that you seek expert legal advice as soon as you can.
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