POCA’s implications are far-reaching and complicated; proceedings often involve the thorough examination of years’ worth of financial transactions. Consequently, when dealing with this area of the law, assistance from experienced and skilled professionals is invaluable. Harris Solicitors routinely defend clients in proceeds of crime cases. If you are facing investigation under POCA, or you know someone who is, contact our firm today for expert advice and assistance.
Here you will find an overview of the proceeds of crime legislation and the implications the law can have on someone who is accused of profiting from criminal conduct. We also include a brief guide to confiscation; the most common measure used by the courts to strip convicted persons of any benefits obtained from their criminal conduct. Indeed, much of the work done by our specialist POCA defence solicitors is in challenging confiscation orders.
The main objectives of POCA are to deny offenders the enjoyment of their illegally obtained assets, to recover the proceeds of crime and distribute them among legitimate channels and, more generally, to deter crime. The powers set out in POCA are far reaching, allowing the relevant authorities to recover assets by way of confiscation, civil recovery, cash seizure and taxing the profits gained from crime. The authorities are also given a number of investigatory powers including search and seizure and orders for the production or disclosure of information relevant to the investigation.
Confiscation is the most frequently used recovery power under POCA. As set out in section 6 of the Act, an order can only be made after conviction. A confiscation order requires the subject to pay the court a sum equal to the benefit they have gained from their illegal conduct. Where the debt is not paid to the court, a custodial sentence can be imposed.
When the court is considering the terms of a confiscation order, it must attempt to make a distinction between those who have benefited from their criminal conduct in the long term (those who have led a ‘criminal lifestyle’) and persons who have only benefited from their ‘particular criminal conduct’ for which they have been convicted.
This distinction is important because a finding of criminal lifestyle permits the court to assume that all transactions carried out by the defendant within the previous six years are related to their criminal conduct. Where there is a criminal lifestyle, the prosecution can, and will, investigate a defendant’s financial activity over the previous six years and attempt to convince the court it should all be paid back. It is up to the defence team to show that assets gained within the six-year period were not the proceeds of crime.
Section 75 of POCA establishes a number of circumstances that the court can rely on for a finding of criminal lifestyle.
If criminal lifestyle is established and the court believes the defendant has profited from their criminal conduct, it will then work out the ‘recoverable amount’ (the monetary equivalent of their benefit). However, if the defence can show that the defendant’s ‘available amount’ is less than the recoverable amount, the defendant will only be required to pay this lesser sum.
Whether the court decides the defendant has a criminal lifestyle or has only benefited in the shorter-term from their particular criminal conduct, in both situations thorough examination and aggressive challenge of the evidence presented by the prosecution will be required.
Harris Solicitors has a wealth of experience scrutinising evidence in POCA cases and we instruct the highest quality experts to help us dispute confiscation orders. Our POCA defence lawyers aim to substantially reduce the impact a confiscation order will have on the defendant’s financial situation.
We have vast experience of protecting our clients’ interests and rights by successfully challenging confiscation orders. For example, we were able to assist a client charged with mortgage fraud exceeding £2 million to vastly reduce the proposed criminal benefit figure to under a seven-figure sum.
We understand that facing criminal proceedings is tough. Where an accused is also subject to investigation under the Proceeds of Crime Act, this only adds to the stress and strain. We take a sensitive and professional approach to such situations, offering advice and support throughout, from representation at the police station to defence in court.
Harris Solicitors specialise in POCA cases and defending clients in confiscation proceedings. Our combined experience is extensive and we deal with many complex and high value cases. We have an excellent track record in protecting our clients’ assets. Our lawyers work tirelessly to prepare a solid defence and achieve the best results possible.
We are available 24 hours a day, 7 days a week to provide advice and assistance. Give us a call during normal working hours on 01274 392 177. However, if you require support out with these hours, please use our emergency numbers (07872835267 or 07590289197).
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