POCA lawyers are sadly now in demand as almost everyone convicted of a certain type of offence is being unfairly targeted in a way that was not originally intended.
It is no secret that a proportion of all confiscated funds go straight back to the Police and prosecuting bodies. This raises serious questions about what motivation is behind pursuing someone under POCA. Are the police and CPS prioritising investigations into criminals who are a real risk to society, or are they starting to prosecute people on the basis that there is money to be had?
This is not an easy area of law. It requires expertise from the POCA lawyer, an aggressive approach, and sensitivity for the client, who may risk losing everything he or she owns.
This is a complex area and we strongly recommend seeking properly qualified professional advice from specialist POCA lawyers.
Confiscation after a Criminal Case - The Law Explained
If you are convicted or plead guilty to an offence, the court must consider confiscation proceedings if it is asked to do so by the prosecution. This does not mean that the court will allow the confiscation. It just allows the prosecution an attempt at the confiscation of assets.
The confiscation proceedings are not a forum for contesting the conviction. The proceedings go ahead on the basis that the defendant is guilty, since they have been convicted. The judge does have the power to stop confiscation proceedings if they consider that it would be unfair to proceed. One factor that the judge may consider is what role the convicted person played in the original criminal case.
It might not seem unreasonable to assume that the court will then decide how much the defendant benefited from the crime, and seize the defendant's assets up to that value. Unfortunately, it is much more severe than that.
These proceedings are acknowledged by most POCA lawyers, and sometimes even by the courts to be severe. The intention is to strip the offender of the proceeds of his or her criminality.
If a defendant is considered to have a ‘criminal lifestyle', then any assets, expenditure, and any property given or received in the last 6 years is assumed to have been met or obtained with the proceeds of criminal conduct, unless you can prove the opposite. For this reason, this requirement to show that all assets passing through a defendant's hands are legitimate is called ‘the assumptions'. Again, the assumptions only kick in if the defendant has a ‘criminal lifestyle'.
If a ‘criminal lifestyle' cannot be shown, then the confiscation is limited to the amount the defendant actually gained in the criminal case. This means that if the court finds that the defendant has a ‘criminal lifestyle' the doors are opened to a full financial attack by the prosecution. It is key that the person going through proceedings is satisfied that he or she has specialist POCA lawyers for this stage.
What is a ‘Criminal Lifestyle'?
A ‘criminal lifestyle' for confiscation proceedings is not a phrase used to describe a defendant's wealth, or general criminal behaviour. It is a legal term which describes a defendant who falls into one of the following three categories:
Where the offence falls into one of the following categories: Drug trafficking offences, money laundering, terrorism directing offences, people and arms trafficking, counterfeiting and copyright offences, prostitution industry offences, and blackmail
If the offence constitutes conduct forming part of a course of criminal activity. This means that in a recently finished case, or in the last 6 years the defendant has been convicted of 3 or more offences from which he has benefited in the sum of £5000 or more.
Where the offence lasted for 6 months or more, according to the evidence in the case
If you have a criminal lifestyle the court will next consider whether you have benefited from your general criminal conduct i.e. whether you have obtained property by or in connection with it. This can be made relatively easy if the assumptions (that all assets that you have had contact with in the last 6 years are the proceeds of crime) apply.
If it is not already obvious, it is possible to have a benefit sum greater than the amount that a defendant obtained from committing the offence. For example, if a defendant is convicted of a fraud from which they made £100,000, but they had also received a further £100,000 in the previous 6 years, the court will assume that the entire £200,000 is criminal property. The benefit figure will therefore be £200,000 unless the defendant can show that the figure is wrong or that there is a serious risk of injustice.
The next step is for the court to find is the recoverable amount. Experienced POCA lawyers will not make the mistake of confusing this with what assets the prosecution say the defendant has. The recoverable amount is usually the benefit figure.
If the judge does not believe the defendant's position that the recoverable amount is less than the benefit figure, he may decide even if there are no identifiable assets that the defendant has somehow concealed them and therefore order make an order for the full benefit.
The All-Important Benefit Figure
A team of experienced POCA lawyers will be well aware that the aim of a confiscation case is to get to the benefit figure, whether it be low (which is good for the defendant), or high (which is good for the prosecution). This is the amount that will probably end up being forfeited.
Here are some points to be aware of:
proceeds, not profits.
Overheads of running the criminal business are irrelevant to the calculation. So is the money shared between defendants. Two defendants who have each handled the same £100,000 without explanation may be liable to forfeit £100,000 each, as unfair as that sounds.
A defendant does not have to have formally owned property to be considered to have been the holder of it. Property held officially by another can be proceeds of crime if it was under the control of the defendant. But the role of the defendant in the offence is important. An employee earning a small criminal wage to transfer funds on behalf of the ring leader may not be considered to have benefited from the whole value of funds, but his or her wages for the task may be included.
In some cases, the court will split the benefit figure between the defendants. The court may decide that the property was jointly owned or if not to divide the value of the goods between the accused. That will depend on the court's assessment of the facts. This can be very important. If the court agrees to apportion the benefit, this can drastically reduce the benefit figure. A close analysis of the facts is required. Where it is decided to apportion the benefit between conspirators, the starting point is an equal split.
The recoverable amount is then decided. The recoverable amount is the same as the benefit figure unless you show that the available amount is less than the benefit. The available amount is the total amount of the free property in which the defendant has an interest together with the value of any tainted gifts.
If you don't give evidence on the point that can be powerful evidence against you. The recoverable amount may not necessarily be the same as the amount you have available. Much of the work the POCA lawyers for the defence will do will focus on valuations and assessments of the available amount, which almost always will have been wildly exaggerated by the prosecution.
As stated above, ‘tainted' gifts are added to the amount that is actually forfeited the available amount'.
A gift is tainted if it is made by the defendant to any person in the period beginning 6 years before the beginning of the case, or if it is made by the defendant with money obtained through crime. A gift also includes a transfer of an asset, for example to a friend or relative in exchange for less money than it is worth.
Third parties including family members
There is no special protection given by the Proceeds of Crime Act to spouses or family members. Despite the technical nature of proceedings, confiscation orders do not just affect the defendant. They have an impact on all those who may hold joint property interests with the defendant for example, partners, spouses, extended family. For some communities, the cultural practice of joint ownership of property can lead to problems.
The partner or spouse can remain in the property pending the conclusion of proceedings. Once again the outcome at the enforcement stage depends on the facts; there are examples of spouses losing their homes and examples going the other way. Courts have said that it is not proportionate to throw an innocent wife out onto the street. Other relevant factors are did the spouse make a contribution in monetary or childcare terms to the mortgage?
Proceeds of Crime How the Court Procedure Works
The process leading up to the final confiscation hearing works in this way:
The first step is usually that the defendant makes a declaration of his assets (a ‘section 18 declaration')
Then the prosecution make a section 16 statement of information in which they set out their case for confiscation of assets
The defendant then makes a section 17 response. If the defence accepts to any extent an allegation in the statement of information, that acceptance may be treated as final.
This means that the section 17 response is incredibly important to get right
A failure to answer the points in the prosecution's Statement of Information may be taken as an admission of everything the prosecution has said about the defendant's assets. This would usually depend on whether the person going through proceedings had been given a proper opportunity to inform their POCA lawyers about their response, and whether there was any other good reason for the failure to respond to those points.
It is important to note that what a person says in their response cannot be used as evidence against him or her in a new criminal case.
If a defendant fails to pay the amount the court decides he or she has available to meet the order, he or she will receive a prison sentence of up to 10 years in default. It has been known that the prison term in default exceeds the prison sentence imposed for the offence itself.
The imposition of a prison sentence in default does not free the defendant of the debt, it hangs over the head of the defendant until paid.
Getting free legal advice from specialist POCA lawyers is fundamental to achieving a proportionate outcome.