Procedure for Confiscation orders
Confiscation proceedings are started either by the prosecution asking the court to take confiscation proceedings or the court deciding itself to take proceedings. If the case fits the criteria the court must proceed to confiscation, they do not have a discretion.
The court must then determine whether you have a criminal lifestyle (this depends on the type of offence or the nature of your offending) or whether you have benefited from your general criminal conduct.
If the court find you do not have a criminal lifestyle or benefited from your general criminal conduct, it must then determine whether you have benefited from your particular criminal conduct, that is to say the offences you have been convicted of.
Once the court has found that you have benefited from your general criminal conduct or particular criminal conduct, it then has to decide the value of the criminal conduct. This value is known as the recoverable amount, or benefit figure.
The court must make a confiscation order equal to the recoverable amount unless you can show that your assets are worth less (this is known as the “available amount”). The confiscation order is made for the lower of the recoverable amount or the available amount.
However once the figure has been set it must then be proportionate, as set out in the European Convention on Human Rights.
Once the court has determined the amount of the confiscation order, it can give you up to three months to pay which can be extended to up to six months from the date of the confiscation order.
The court must then fix the length of prison sentence you must serve if you do not make payment.
In assessing the amounts, the court will rely upon information provided by the Prosecution and yourself by way of statements of information.
In a criminal lifestyle case The statement of information must set out the basis for the prosecutor’s claim that you have a criminal lifestyle and has to include matters the prosecutor believes are relevant in connection with deciding
whether you have a criminal lifestyle;
whether you have benefited from general criminal conduct;
your benefit from the conduct;
information to assist the court in connection with the making of the required assumptions relating to whether you have a criminal lifestyle;
material to assist the court in determining whether the circumstances are such that an assumption should not be made.
If the prosecutor does not believe that you have a criminal lifestyle, then the prosecutors statement of information is a statement of matters relating to whether you have benefited from your particular criminal conduct and the extent of your benefit from that conduct.
The prosecutor may submit a further statement at any time and the court may order them to provide further information within a specified time.
Once the statement of information is served the court can order you to indicate the extent to which you accept any allegation in the statement, and, if not upon what evidence you intend to rely to argue against it.
If you fail to comply with this requirement, the court may treat you as accepting the allegation.
Defendant’s response to statement of information— section 17 statements
You can serve your own statement under s.17 of the PCA 2002 in response to the prosecutors statement, this is your opportunity to dispute the prosecution claims. You can include evidence such as bank statements, receipts and also statements from other people. This is a vital part of the proceedings and it is important to provide a full statement with as much evidence as possible. It is recommended that you instruct a specialist POCA, or confiscation solicitor to help with this.
The court can also order you to provide it with
information. This is done under s18 of the PCA 2002 and is normally done before the prosecution provide their s16 statement and will include a request for details of all of your bank accounts, property owned by you and any other matter relating to your finances.
Confiscation order under the POCA regime are extremely serious and can be life changing. It is important that you seek expert legal advice from a POCA solicitor as early as possible to ensure that you are not ordered to pay more money than you should do.
Forrest Williams are experienced confiscation solicitors and can advise on all type of confiscation cases.
Call us on 01623 397200 for free initial advice.
We cover the whole of the UK and can see people face to face in Nottingham, Birmingham and London.