What is POCA?
POCA is an acronym which stands for the Proceeds of Crime Act 2002. Our specialist POCA solicitors are experts on all areas of Proceeds of Crime and Confiscation Orders.
The Proceeds of Crime Act (POCA) details the legislation in place which deals with the recovery of criminal assets.
Confiscation is the most common recourse applied by the courts, after a defendant has been convicted.
However, the Act allows for other methods of recovering the proceeds of crime which do not necessitate a conviction. These include: civil recovery, cash seizure and taxation powers.
POCA’s asset recovery schemes are aimed at denying criminals the use of their assets, recovering the proceeds of crime and deterring criminal behaviour.
The Crown Court must proceed under section 6 POCA, if two conditions are met.
The first condition is that the defendant:
- is convicted of an offence or offences in proceedings before the Crown Court; or
- is committed to the Crown Court for sentence; or
- is committed to the Crown Court with a view to a confiscation order being made.
The second condition is:
- the prosecutor asks the court to proceed; or
- the court considers it appropriate to do so.
What is ‘confiscation’?
When a person has been convicted of a crime, a Confiscation Order can be made by the court.
The aims of confiscation orders are three-fold: (1) to deprive offenders of the proceeds of crime; (2) to deter further offences from taking place; and (3) to reduce the profits available to fund other criminal enterprises.
Guidance given to the Crown Prosecution Service (CPS) is such that prosecutors should consider asset recovery in all cases where a defendant has benefited from criminal conduct and commence confiscation proceedings where appropriate to do so.
How is a decision made about whether it is a confiscation case?
Consideration should be given by prosecutors to the lifestyle and known assets of the suspect/defendant. They should consider information given on the MG3, MG6 and MG17 forms in police cases as well as any evidence of the person having a lavish lifestyle, i.e. expensive homes, cars, jewellery, holidays and other assets referred to in custody records, witness statements or interviews.
If a defendant is charged with an offence included within Schedule 2 of POCA, then a referral will usually be made for a financial investigation to take place, as such offences are typically committed by criminals to acquire wealth.
Offending behaviour can also be caught by Section 75 POCA 2002, which should also lead to referral for financial investigation, following which a Confiscation Order should be made (in cases where assets exist).
Where an investigation has confirmed that a suspect has few/no assets, then confiscation may not be a realistic option. Alternatives may be compensation, deprivation, forfeiture or restitution orders and costs.
What is the confiscation procedure?
The main points of the scheme, as detailed by the CPS, are:
- The regime is mandatory and the Crown Court must proceed to a confiscation hearing if the defendant is convicted of an offence and the prosecution as the court to proceed or it decides to do so of its own motion: see section 6 (1) (2) and (3) of POCA.
- The standard of proof is proof on a balance of probabilities: see section 6 (7) of POCA.
- The defendant is committed for sentence and/or for consideration of a confiscation order, or is convicted in the Crown Court;
- The prosecutor asks or the Court considers it appropriate to consider making a confiscation order (N.B. No written notice is required);
- The court decides whether the defendant has a criminal lifestyle;
- If he or she does have a criminal lifestyle the Court calculates the benefit from general criminal conduct using the assumptions;
- If he or she does not have a criminal lifestyle, the Court will calculate the benefit from particular criminal conduct (the actual offences of which the defendant is convicted);
- The Court determines the recoverable amount;
- The defendant may prove that he or she cannot pay the recoverable amount (whether this is the calculation of general criminal conduct or the calculation of particular criminal conduct), but can pay the available amount. If the defendant is able to prove this, then the recoverable amount will be equal to the available amount;
- The Court must then make a confiscation order in the recoverable amount;
- If the Court makes a confiscation order in the available amount, it must include a statement of its findings that sets out how it arrived at that amount;
- If a victim has, or intends to start civil proceedings in respect of the criminal conduct, the Court has a discretion to decide whether or not to make an order;
- On the application of the prosecutor, the Court may, if it thinks it appropriate, make a confiscation order against a defendant, who has absconded. In the case of a non-convicted defendant, the defendant must have absconded for a period of at least two years;
- When the defendant ceases to be an absconder, the Court may vary the order;
- Whether or not a confiscation order has been made, the prosecutor may apply within six years of the date of conviction for the Court to reconsider, where there is evidence which was not originally available to the prosecutor; and
- Both the defendant and the prosecution have a right of appeal (with the leave of the Court of Appeal) against the confiscation rulings.
What is meant by a ‘criminal lifestyle’?
A person is deemed to have a criminal lifestyle (section 75) if the offence satisfies one or more of these tests:
- it is specified in Schedule 2 (see list below);
- it constitutes conduct forming part of a course of criminal activity; and/or
- it is an offence committed by the defendant over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence.
Note: In general terms, the criminal lifestyle test is not satisfied unless the defendant has obtained benefit of at least £5,000 in the cases of (2) and (3).
Schedule 2 (criminal lifestyle) specified offences are listed as: drug trafficking, money laundering, directing terrorism, people trafficking, arms trafficking, counterfeiting, intellectual property, pimps and brothels, blackmail; or an offence of attempting, conspiring, inciting, aiding, abetting, counselling or procuring an offence specified in Schedule 2.
What if my lifestyle was not criminal?
In confiscation proceedings it is your duty to prove that the assets and money you own did not come from criminal activity. Without POCA solicitors, you may be left to wade through this complex area alone.
The prosecution will go through your assets in great detail and will look to confiscate any unexplained income or assets. Our POCA solicitors will be able to counter their claims and build your case.
What period is relevant for the confiscation proceedings?
As the ‘relevant day’ is the first day of the period six years before legal proceedings were initiated, this means that all assets – properties, cars, bank accounts – are assumed to have resulted from a criminal lifestyle and are therefore at risk of confiscation because of this.
What will happen if I cannot pay Confiscation Order?
It may be possible to request an extension of the time limit to make payment of the recoverable amount specified on the Order.
A default sentence will have been set, and this will be put into place if payment is not made as per the confiscation order.
A person can be sent to prison in default of payment and still owe the money.
How can Forrest Williams Legal Ltd help me?
We are specialist POCA solicitors. If you have concerns about confiscation proceedings and/or POCA, you need expert advice at the earliest opportunity, as this is a complicated area of law. Our POCA solicitors are the leading experts in the country in this area.
We work with the best barristers in the business who are tough and thorough and will fight your corner every inch of the way to keep every pound you have honestly earned.
Our POCA solicitors will meet with you in our Midlands or London offices and give you an initial assessment of your case.
If we decide to take your case on, we will give you a guaranteed fixed fee.
We are an award winning specialist private criminal firm rated in the prestigious Legal 500 directory.
We do not do Legal Aid and we are not allowed to work on a no win no fee basis. If your case is too important to leave to a general Legal Aid firm, our private POCA solicitors are ready to fight for you.