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Confiscation
The Proceeds of Crime Act (POCA) 2002 combines previous legislation and introduced wide-ranging, groundbreaking powers to enable the police and law enforcement authorities to reduce the harm caused by crime and the perceptions of crime.
POCA was intended to enforce the 'crime does not pay' message by depriving offenders of the benefits obtained from their criminality (i.e. preventing them living the life of luxury on the proceeds of their crimes). The power to confiscate assets is a powerful tool in the asset recovery process and POCA is now the primary legislation used in financial investigations.
On this page:
What is confiscation?
Confiscation is a legal process by which the financial benefit from an offender's 'criminal conduct' is calculated and an equivalent amount (where recoverable) is recovered and returned to the State.
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What is the procedure for making a Confiscation Order?
Under POCA the Crown Court must proceed with confiscation proceedings following a defendant's conviction where either the prosecutor or the court believes it is appropriate to do so.
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What does the confiscation process set out to determine?
Confiscation sets out to determine:
- Determine whether the defendant has a 'criminal lifestyle';
- If so, whether they benefited from their crime ('general or particular criminal conduct');
- If so, the amount of that benefit;
- Determine the 'recoverable amount'. This is the lower of the amount of realisable assets held by the defendant (directly or indirectly) or the amount that is available to confiscate;
- Make a Confiscation Order requiring the defendant to pay the 'recoverable amount'; and
- Impose a 'default sentence' should the Confiscation Order not be paid.
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Does a defendant have to benefit directly from their crime?
No.
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What is the standard of proof in the confiscation process?
The standard of proof is on the balance of probabilities in relation to:
- A 'criminal lifestyle';
- Benefit from 'general criminal conduct'; and
- The 'recoverable amount'.
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What are the statutory assumptions?
If a defendant is held to have a 'criminal lifestyle' the court must make four assumptions in order to decide whether the defendant has benefited from their 'general criminal conduct'.
The four assumptions are any:
1. Property held by the defendant at any time since conviction, obtained as a result of their 'general criminal conduct';
2. Property transferred to the defendant after the 'relevant day', obtained as a result of their 'general criminal conduct';
3. Expenditure incurred by the defendant at any time after the 'relevant day' was met from property obtained as a result of their 'general criminal conduct'; and
4. Property obtained by the defendant where he obtained it free of any other interest in it.
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What circumstances will the assumptions not be made?
The assumptions will not be made if:
- It is shown to be incorrect; or
- There would be a serious risk of injustice if an assumption was made.
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Are Confiscation Orders being extensively sought?
Yes. The Serious Organised Crime Agency (SOCA) alone reported that in 2010/11 and 2009/10 it obtained Confiscation Orders totalling £33.8m and £17.2m of assets respectively.
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I am subject of confiscation proceedings. What should I do?
If you are subject of confiscation proceedings the best thing you can do is the 'right thing'; the worst thing you can do is nothing. Specialist advice is essential and OneE TDI will help you make the right decisions.
The case of R v Chambers [2008] EWCA Crim 2467 demonstrates that despite the years that have elapsed since POCA was introduced law enforcement authorities do not always get it right. A Confiscation Order made under old regulations in this tobacco-smuggling case had to be quashed because the prosecuting authority had overlooked the fact that new regulations had narrowed the categories of persons liable to pay excise duty. This case led to the Chambers Review where 2,615 tobacco-smuggling cases were reviewed with 680 Confiscation Orders having been made. A total of 68 defendants were found to have had Confiscation Orders made where the Revenue & Customs Prosecution Office, since merged with the Crown Prosecution Service, relied on the old regulations.
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How can OneE TDI help?
POCA is a draconian piece of legislation. In many cases, it has been properly used and led to criminals losing their 'ill-gotten gains'. However, OneE TDI has acted or been instructed in a number of cases where we have successfully demonstrated that the Prosecution's assertions either had no supporting evidence, were unjust or there would be a serious risk of injustice were the Court to agree them.
At the core of OneE TDI is a highly experienced team specialising in all areas of POCA investigations. Mark Taylor was a Case Director in HMRC's Restraint, Confiscation & Civil Forfeiture Unit and became an Accredited Financial Investigator authorised by the Asset Recovery Agency. He successfully obtained and executed POCA Court Orders and so knows how best to present and defend a case. He is now an associate member of the Proceeds of Crime Lawyers Association (POCLA) and is a recognised expert in this area of law.
We offer confidential, non-judgemental and invaluable advice and have a proven track record in challenging Prosecution assertions, benefit calculations (including defending client's from the statutory assumptions) and disproving hidden asset arguments. We work with instructing lawyers to control and manage all confiscation cases.
Please see the Testimonials kindly provided by our clients (or their accountants or lawyers), which confirm our levels of client service.
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How can I contact OneE TDI?
If you would like a free, no obligation discussion with us please contact either Gary Rowson or Mark Taylor on 0800 652 6156 or complete and submit the online form below:
Whilst we endeavour to provide informative and accurate information, the content on this site is for general information purposes only and should not be taken to constitute tax or legal advice which must always be tailored to individual circumstances. Please contact us if you would like to discuss matters.
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Proceeds of Crime Act (POCA) Investigations