Proceeds of Crime

This is a complex area of the law and which most find the most traumatic as the state and its prosecuting authorities whether it be the Police or the Benefits agency can seek to confiscate property, some of which may have been held for a number of years and could affect a great deal of people.

Applications under POCA are usually made post a conviction of one shape or another, however applications can be made for what are known as Restraining Orders and such can be obtained before any charge is ever laid. A Crown Court judge will hear evidence from the Prosecuting authorities and he will then either grant the Order or refuse, prior to the introduction of POCA it was the High Court only who had the power to make such an order.

Once made the order will have the effect of restraining what is termed your ‘realisable assets’, and these assets will be specified in the Order with an obligation not to dispose of such, and if any are disposed in violation of the Order, that in itself can lead to Criminal action.

Once the Order is made and served, and it does not have to be served just on the person who is being investigated, they are often served on others who the prosecuting authorities believe hold assets either in their own right but on behalf of others, or are holding them on behalf of others. An example of this would be if A asked B to bank £20000 on his behalf in A’s account, then A could be served with an Order as he has the Power to remove the Money and dispose of it or return it to B. Thus a number of others could be affected and they may be investigated for Money laundering. It is important to seek early and immediate legal advice in order to protect your interests.

On a person being convicted for any number of offences (which include financial and drug trafficking offences) the Court will on the application of the Prosecution embark on Confiscation Proceedings.

The Court will decide whether a Defendant has benefited from his ‘’general criminal conduct’’. A wide interpretation is attached to this. (s.76 (2) POCA). For these purposes the Court makes various statutory ‘’assumptions’’ (s.10 POCA). These assumptions then have to rebutted, ordinarily in the burden is on the prosecuting authorities to prove that what they allege is untoward, but under S.10, it is for the convicted to prove otherwise.

However, there is a time of 2 years if the POCA is started post conviction, this means the Prosecuting authorities have exactly 2 years from the date of the conviction to conclude any matters under POCA, and any failure may result in the POCA collapsing for being out of time.

The starting point and most important assumptions is; any property transferred to the Defendant within the period of six years ending on the date on which proceedings were started was obtained by him as a result of his general criminal conduct.

In order to bolster the assumption, the Prosecuting authorities will service volumes of financial data and transactions and this has to be dealt with as quickly as possible as the assumptions are rebuttable. There will be a timetable which has to be adhered to any failure to do so could have serious consequences.

Once all the necessary work has been done then either an agreement or compromise will be reached or the matter will proceed to a contested hearing where the judge will make the final decision. Any order will specify the Criminal Benefit and then the realizable assets and the judge will determine the length of a custodial sentence should there be a default on payment.

Should a final Order be made, there will be 6months time limit in which any monies or properties which need to be paid, must be done otherwise In the end the Court will be asked to make a confiscation order to a particular amount and failure to pay will mean a term of imprisonment in default being activated.

These proceedings are often difficult and complicated and early preparation is crucial.

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