The Proceeds of Crime Act 2002 (POCA) is the main legislation that relates to the confiscation process. POCA is used in the recovery and confiscation of money and assets gained from criminal activities and money laundering.
Confiscation proceedings commence after a defendant is convicted of an offence and sentenced in the Crown Court. Often the prosecution asks the Court to commence proceedings against the defendant, and the Court will activate proceedings if they consider it to be appropriate. Unlike other Court proceedings, the burden is on the defendant to establish the legitimacy of their assets and must rebut certain statutory assumptions.
Confiscation orders can only be made by the Crown Court but can be amended and enforced by the Magistrates’ Court.
Other means of recovering the proceeds of crime, which do not result following a conviction, include civil recovery, cash seizure and taxation powers.
A financial investigator for the prosecution must calculate the benefit figure and the available amount for a defendant in order to ascertain how much they have benefitted, and how much can be recovered. This amount is calculated by looking at a number of factors including the crime committed and the judgment that the defendant has lived a criminal lifestyle, which is assumed in certain cases such as money laundering offences or the supply of drugs.
Firstly, the prosecution will ask the defendant to fill out a questionnaire under Section 18 POCA, which determines how much is available in bank accounts and the value of assets such as property. At this stage, the defendant must declare all earnings, savings and access to any other financial assets. Failure to comply with the process or to find the information is not accurate, does have consequences within the court system.
The prosecution will then respond with a statement under Section 16 POCA detailing the calculations of the benefit figure and available amount.
The defence must then respond under Section 17 POCA stating what is agreed and what is in dispute. It is here that we argue legal points relating to the law and provide evidence showing the calculations used by the prosecution are incorrect. This has involved our team travelling internationally to obtain the evidence required to support the client’s case.
The burden is on the defendant to evidence that any property held or income received is legitimate and to rebut any statutory assumptions of what amounts to proceeds of crime.
Schedule 4 POCA lists the ‘qualifying offences’, which, if committed, allow the Court to assume the defendant had a ‘criminal lifestyle’ and has therefore benefited from ‘general criminal conduct’ over a period of six years prior to the date the proceedings commenced.
Generally speaking, these assumptions extend to all property held by or transferred to the defendant and all income and expenditure over a period commencing six years prior to the date when the proceedings were commenced. This often includes money transfers made to family or friends for legitimate reasons but the law says they could be included in these proceedings.
Once the Court has made a Confiscation Order, it must be paid within a set timeframe. The Court may activate a default prison sentence if you fail to pay. However, even once this prison sentence has been served, the prosecution can continue to make attempts to recover the proceeds of crime.
Our Criminal Lawyers at Nicholls & Nicholls have expert knowledge of POCA and handling confiscation proceedings. We work with specialist forensic accountants and other qualified professionals to ensure you have the best team around you in your case.
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