POCA and Confiscation Solicitors.
POCA stands for the Proceeds of Crime Act 2002. Our specialist POCA solicitors are experts on all areas of Proceeds of Crime and Confiscation Orders.
We have been instructed on many large POCA cases involving millions of pounds of assets. We have successfully defended applications and saved clients’ large sums of money. We are nationwide POCA solicitors and can represent people in every court. We are able to meet clients face to face in Nottingham, Birmingham and London. We work with a team of barristers and forensic accountants.
Call us on 01623 397200 for free initial advice.
Proceeds of crime applications are a way of recovering money and assets that the prosecution say have come from criminal activity. It is not a punishment but a way of recovering any benefit (money or assets) illegally obtained. In practice it can have a bigger impact than any punishment.
POCA applications are made by the prosecution at the end of a case if you are found guilty or plead guilty. Certain conditions have to apply before the prosecution can make a POCA application.
There must be some benefit illegally obtained so this does not apply for example to an assault case. The court initially has to decide what benefit has been illegally obtained. Sometimes this can be easy. If someone takes £500 from a person, then the benefit is £500. In most cases however it is not so simple. If someone supplies drugs or sells fake designer clothes what is the value? This is an area where is it vital to have a specialist POCA solicitor. We can build a case to reduce the amount of benefit that the court takes into account.
How much will the court say I have benefited from my conviction?
The court first has to establish whether you have a criminal lifestyle. Many people are shocked at the suggestion they have a criminal lifestyle. It portrays an image of drug dealers driving around in flashy cars but many people are declared to have a criminal lifestyle where it would not appear to be so.
The importance of deciding whether you have a criminal lifestyle is that if it is decided that you do have a criminal lifestyle then the court can look at all of your financial dealings in the last 6 years, not just the offences you are charged with. If you do not have a criminal lifestyle, then the amount that can be confiscated is limited to the amount involved in this offence.
There are 3 ways the court can conclude that you have a criminal lifestyle.
- The type of offence you have been convicted of. Some offences automatically mean that you will be said to have a criminal lifestyle, these are contained in schedule 2 of Proceeds of Crime Act 2002.
They include the sorts of cases you would expect – drug trafficking, money laundering, Arms trafficking and Counterfeiting but they also include less serious offences such as intellectual property which would include selling a fake designer T shirt on a market stall or Ebay.
If you are convicted of any of these offences, then it will be established you have a criminal lifestyle.
- The number of offences and sums involved.
If the sums involved are £5000 or more AND you are convicted of at least four offences on this occasion OR in the six years you have been convicted on at least two separate occasions of offences from which you have obtained a benefit.
If these criteria apply, then you will be deemed to have a criminal lifestyle.
- The length of time the offences took place over and the sums involved.
Similar to the scenario above if you have been convicted of an offence for which you obtain more than £5000 AND it has been carried out over a period of more than 6 months.
So for example if you have been charged with stealing £5000 from an employer and the offence took place over a 6-month period or more. Another common example is falsely claiming benefit totalling more than £5000 and you falsely claimed benefits for 6 months or more.
Benefit amount.
The next step is to decide what is called the benefit amount, that is to say how much you benefitted from the offences.
If it has been declared that you do not have a criminal lifestyle, then the benefit amount is the benefit received from that specific offence (so for example in the case where someone steals £500 the benefit amount would be £500)
Most POCA case however involve a criminal lifestyle enquiry. This is where the law can be very tough and can have devastating effects on a defendant and their family.
The court will work on three assumptions once a criminal lifestyle is found –
- Transferred Property.
This assumes that any property (including money) transferred to you in the last 6 years is from criminal conduct unless you can prove otherwise. So the prosecution would obtain your bank statements and total up all of the money going into those account. Their starting point will be that that is all criminal money. You will have to prove that it isn’t.
In some cases, this is quite easy because it will include your wages and if you can show that it is wages from a legitimate job then normally the prosecution will accept that this is not criminal money. Other cases may be more difficult for example, if you receive some money from an inheritance or a friend lent you some, or repaid you for something you have purchased for them.
The burden is on you to prove it is legitimate. It will of course also include property other than money so if you have purchased a house or a car during this period you will have to show it came from legitimate funds. It can be especially difficult for people who deal in case such as market traders.
POCA and confiscation solicitors can help to build a case to get this amount reduced.
- Any property held by you.
This does not have the 6-year time limit and includes any property you held at the time of the offence, regardless of when you purchased it. This will include your house, car and any property abroad. It will also include any property jointly held.
3. Expenditure.
It will be assumed that any money you have spent has come from criminal proceeds unless you can prove otherwise.
The Available Amount
Having set a benefit figure the court then looks at how much you have available. This will include all the property and cash you hold at the time AND anything declared a ‘tainted gift’. A tainted gift is where you have sold, or transferred property for less than the value of it.
Confiscation Order.
Once the court has established the benefit figure and the available amount you will then be order to pay the smaller of those figures, so for example if the amount you have benefitted from amounts to £1M but the value of all of your property and tainted gifts is £750,000 then you will be ordered to pay £750,000.
You will normally be given time to pay but if you do not pay then you will be sent to prison for a set period. Once you are released from prison the money is still owed and other enforcement proceedings can be taken.
Orders can be made appointing receivers over your property with a view to selling them to recover the money.
How Can POCA and Confiscation Solicitors help?
The Proceeds of Crime law is huge and we are only able to give the very basic details here. It is entirely different from Criminal Law. Most criminal solicitors will have very little, if any experience of dealing with POCA applications. We as POCA Solicitors are often called in by Criminal solicitors to help with their POCA cases because they accept that they do not have the necessary experience and knowledge.
Confiscation orders can have a devastating impact on families, it can result in the loss of savings, loss of the family home. Whilst a confiscation order will only be made if you have been convicted of a crime it is vital that you establish what is legitimate money. You may have benefited from the crime you are convicted of but you have to protect assets that you and your family have worked hard for.
We can help establish that the money came from legitimate sources, we work with a team of barristers and forensic accountants, you have to prove the money is legitimate and we will go through everything in fine detail and gather evidence to prove our case and protect your family’s assets.
We are not a legal aid firm, we are private paying POCA Solicitors. We always work on a fixed fee case. We would always assess whether the amount of money we can save you is less than our fees to make sure you get the full benefit of our services. We are not allowed to work on a no win no fee basis.
The first step is to call us on 01623 397200 for free initial advice. If we believe it is a case we can help with then we will arrange a meeting with you at our Nottingham, London or Birmingham offices. We can arrange for our barristers and forensic accountants to be present too at that stage if appropriate.
We get a lot of people calling us for a second opinion because their solicitor is not a specialist or is a legal aid lawyer out of their depth. We are happy to give a second opinion for a fixed fee following which you can choose whether to instruct us fully for the case.
Third Party Instructions.
POCA impacts not just the defendant but also their family, sometimes family assets will be caught up in these case and we are able to act for a third party to protect their interests too.
If you need any advice call our POCA solicitors on 01623 397200.