Proceeds of Crime (POCA) and Money Laundering offences - protecting your assets.
If you are facing confiscation (POCA) proceedings or money laundering charges, the need to seek advice from specialist money laundering solicitors is obvious. Often these cases involve a large number of complex financial transactions, some of which, in the case of confiscation proceedings, can stretch back over 6 years from the date of the offence, which is an awfully long time. Confiscation proceedings are unusual as the famous 'burden of proof' - the phrase lawyers use to describe how it is the prosecution's job to prove an allegation, not the defendant - is reversed. The idea is that you have already been convicted of an offence that has caused the confiscation proceedings; it is now up to you to prove that the assets you own were legitimately obtained and not the proceeds of criminal conduct.
The Proceeds of Crime Act 2002 contains the money laundering offences. This law makes it a criminal offence for someone to use property obtained from criminal conduct. Criminal property is property which someone has received as a result of criminal conduct. It includes money, shares, and any physical property.
It is an offence to conceal, convert, disguise or transfer criminal property or to use or possess criminal property. This means that anyone who has come into contact with the proceeds of crime (whether knowingly or not) may be at risk of being accused of an offence.
These are the basic rules that specialist money laundering solicitors will be familiar with.
Strategies used by Money Laundering Solicitors
The key to any successful defence is preparation. This means working through the material with your money laundering solicitors so that when the case finally gets to court your barrister is able to help the jury, or Judge, understand the material. Especially in confiscation proceedings where every item the prosecution count as criminal property must be accounted for.
In confiscation proceedings (POCA), it is possible, and preferable, to agree on a final figure with the prosecution before a full hearing where a judge acts as the fact-finder. The reversal of the burden of proof makes it all the more sensible to account for and explain everything in writing, rather than risk arguing if something is legitimate in court.
There are a number of factors that can affect the length or type of sentence if somebody is convicted. The amount of money involved is an important one. The seriousness of the offence increases as the amount of money involved increases. How many money laundering transactions occurred and whether drugs were involved are also taken into consideration.
Where someone has been ordered to pay a sum of money after a POCA case a judge can impose a default term of imprisonment if a person fails to pay within a defined period. Making sure you are properly advised during the negotiation stage by a team of specialist money laundering solicitors greatly minimises this risk as a sum of money you can afford should be agreed.
These proceedings were designed to help recover the profit from a criminal enterprise. Think large scale drug dealers who drive flashy cars and live in big houses. Unfortunately, they are now widely attached to any offence where someone is alleged to have gained financially from their criminal conduct, this could be a VAT fraud from someone who failed to manage a business correctly or someone convicted at the tail end of a conspiracy case who has little or no knowledge of the real benefit to those at the top. It's no longer an exclusive club and that it is concerning for many people who find themselves caught up in the UK justice system. If you are concerned this might be happening in your case then seek the advice of specialist money laundering solicitors.
Proceedings will be on a civil basis where someone has had items seized by the police because they suspect them to be the proceeds of crime. No criminal charges have to be brought. Something might be seized by police after an arrest or when carrying out a warrant.
A statement of means listing all assets must be made by the defendant and 4 weeks later the police will serve a list of assumptions which must be disproved. An example is an assumption that a car was bought with drug money. Disproving these assumptions takes a proactive approach. Specialist money laundering solicitors will work with their client to gather together information from analysing their accounts or taking statements from supporting witnesses.
Proceeds of Crime Confiscation after a Criminal Conviction
When someone is convicted of a criminal offence, proceedings will be on a criminal basis. There is also the potential for new money laundering charges to be brought. This is because the ‘criminal conduct' element is much easier to prove after conviction.
Confiscation proceedings can be lengthy and drawn out, with a large number of financial transactions to account for. All of the work is done in fixed stages which represent a written conversation between the defence and the prosecution with a view to achieving an agreement as to the amount of money available for confiscation.
Third-party interests - spouses and family members
It may be the case that someone going through confiscation proceedings owns a house or other property with someone else and that property is at risk of being seized. In this case, the third party will need to seek advice, and possibly representation, from their own specialist money laundering solicitors. The same applies to anyone who has benefitted from a substantial gift - substantial is a word lawyers use in these proceedings to mean anything over an above what you might consider an ordinary and reasonable gift, think a push bike against a £20,000 car - in the previous 6 years from the person going through proceedings.
In either situation, all assets which are criminal property and represent the profit from crime may be seized. This can be troubling for the families of those convicted as important assets can be put under threat. The prospect of losing the family home can be very stressful.
Senior judges and the Law Commission have already expressed concern about the way that this part of the law is being used in modern times.
Being caught up in an investigation for fraud by misrepresentation can feel stressful and confusing. The fraud act offences have a wide scope and can affect ordinary, law abiding people. That particularly applies to section 2.
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