Confiscation proceedings under s6 POCA are increasingly used as a sentencing tool following a conviction. When POCA came into force, the courts were given a wide range of powers to confiscate criminals’ assets including those convicted of financial crime. The courts even have the power to make assumptions as to the certainty of how assets were actually obtained. So if the court makes the assumption that an asset did result from criminal conduct, it could then be confiscated.
POCA also introduced a number of money laundering offences.
A confiscation order can only be made after a conviction and is applied for by the prosecution. The order can be made in the sum of the benefit of criminal conduct; or the sum of the available amount (whichever figure is lower). If the defendant does not pay, a prison sentence can be imposed for non-payment.
The court must decide if the Defendant has a 'criminal lifestyle' or whether he has just benefited from his 'particular criminal conduct. A criminal lifestyle can be evidenced by the defendant’s offending behaviour. A defendant is deemed to have a criminal lifestyle if he or she has been convicted of offences specified under POCA, including offences under the Drug Trafficking Act, the Terrorism Act, the Immigration Act 1971, money laundering, people trafficking, arms trafficking, counterfeiting, and blackmail.
In other circumstances, the prosecuting authority is likely to take the view that the offences in questions amounted to ‘criminal lifestyle’ under POCA if it took place over a period exceeding 6 months. The court can then consider assets and acquisitions dating back 6 years before the date proceedings commenced. The burden is then on the defendant to prove that transactions within that period were not the proceeds of crime.
It is important to understand that if you are assumed to have a criminal lifestyle for the purposes of POCA, the prosecution can pursue you for everything you have – and may acquire in the future. We will meticulously examine the figures the prosecuting authority seeks to rely on, together with other evidence it is relying on, instructing the services of forensic accountants when necessary.
Admissions: strategy is important
Confiscation proceedings are separate from the original trial. However, if you are being prosecuted for offences which should lead to confiscation proceedings, we can take steps to reduce the value of any order. For instance, you can make certain admissions - including that a source of income was legitimately received.
We keep up-to-date with POCA proceedings to ensure we give our clients the best advice possible. There are, for instance, a number of cases where the benefit figure (and therefore the sum of the confiscation proceedings) is reduced on appeal.
In a recent case, for instance, a defendant was convicted of failing to comply with planning enforcement notices. A confiscation order was made against him for more than £1.4m, on the basis he was treated as having a criminal lifestyle: assumptions under s10 POCA were applied. However, the ‘benefit’ within the meaning of POCA did not include rents received where no enforcement notice had been served (or before the enforcement compliance deadline). The confiscation order was therefore set aside by the Court of Appeal; and a fresh order was made for a considerably smaller sum.
Confiscation orders last a lifetime. So even in circumstances where our clients do not have assets to pay under the terms of a confiscation order, it is vital to ensure the benefit future is proportionate because if clients come into property or inheritance, for instance, at a later date – these need to be protected because the prosecution can apply to court to take these into account.
The criminal defence team at Qamar is experienced in POCA proceedings and we have the financial acumen to be able to discuss clients’ overseas assets and trusts funds, third party interests and expected future inheritances and other windfalls in the context of confiscation proceedings.
Where necessary, we will aggressively defend our clients against unmerited confiscation proceedings. Whether or not you have yet been convicted of a crime from which you have received a benefit, contact the criminal defence lawyers at Qamar Solicitors immediately for urgent specialist legal advice.