Proceeds Of Crime (POCA)
The Proceeds of Crime Act 2002 came into force on the 24 March 2003 for offences committed on or after that date. The original purpose of this legislation was to strip drug barons and other organised criminals of the proceeds of their criminal activity. In practice however, confiscation proceedings are deployed extensively by prosecuting authorities in all manner of criminal proceedings where it can be said that the defendant has benefited financially from his criminal conduct.
The provisions of the Proceeds of Crime Act are draconian. They work very much in favour of the prosecution. The powers granted to investigators and prosecutors are far reaching and can affect the lives of those involved in confiscation proceedings indefinitely.
When a defendant is convicted of an offence from which he has benefited financially, the prosecution may invite the Court to make a confiscation order. The Court may also instigate confiscation proceedings of its own motion.
Confiscation proceedings can only take place in the Crown Court. They can be brought in proceedings where the defendant is convicted of an offence before the Crown Court, is committed for sentence to the Crown Court, or has been committed by the Magistrates’ Court for a confiscation order to be made where the offence would otherwise have been sentenced in the Magistrates’ Court.
Contested confiscation proceedings are heard before a Judge only, not a Jury. In broad terms, the prosecution must prove the amount by which the defendant has benefited from his criminal conduct. The value of that benefit can be calculated in a number of different ways. Once the prosecution have proved the value of the benefit, that figure is referred to as the recoverable amount. It is the amount which can ultimately be recovered from the defendant.
Once the recoverable amount has been established, the Court is required to make a confiscation order in that amount, unless the defendant can prove that the value of his available assets is less that the recoverable amount. Available assets include the total value of all free property held by the defendant added to the value of all tainted gifts.
It is a common misconception that the Court will make an order to recover assets obtained as a direct result of the defendant’s criminal conduct. In fact, once the Court has established the recoverable amount, the value of all the defendant’s available assets will be used to determine how much the defendant should pay, whether they were obtained legitimately or illegally.
The Court will make an order for the defendant to serve a term of imprisonment in default if he does not pay the confiscation order in full. The Court will initially allow the defendant up to three months to pay. That period can be extended to six months, but only by order of the Court.
Once the time to pay has expired, the authorities will add interest to the amount payable, and that interest together with the capital amount originally ordered will be payable. Once the time to pay has expired the defendant will be liable to be committed to custody for the entire term of the default sentence. If the defendant is already serving a term of imprisonment for the original offence, the default sentence will run consecutive to that term of imprisonment. Interest will be charged on the capital sum despite the fact that the defendant is serving a prison sentence. On his release the amount owed will not be expunged and will remain payable, with interest.
If the amount ordered to be paid remains unpaid, interest will accrue indefinitely. The order can be placed on the defendant’s credit file and the defendant could be returned to prison for further default sentences if the interest continues to accrue beyond certain thresholds.
Confiscation proceedings need to be handled with great care. It is essential that in every single case the defence challenge every aspect of the benefit figure asserted by the prosecution to bring that figure down to an amount that is as low as possible. That should be done even in the circumstances where the defendant has no assets with which to pay a confiscation order. By doing so you protect your client’s interests as far as is reasonably possible in the future. Often, solicitors place far too much focus on the value of the defendant’s available assets.
Our specialist team have a wealth of experience in dealing with confiscation proceedings. We are experts in the field and can offer our clients expert advice and assistance with respect to all confiscation matters.
What To Do Now
If you have been accused of an Assault and require representation, contact us immediately to speak to one of our specialist solicitors to discuss your case in confidence and to obtain fee quote. Our representation is provided on a privately funded basis. We do not offer any form of Legal Aid funding.
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