The Proceeds of Crime Act 2002 (‘POCA’) is designed to prevent convicted persons from benefiting financially from the crime for which they have been convicted.
The POCA process is complicated and subject to regular changes in the relevant legislation.
John Veale of Kangs Solicitors comments upon some of the aspects.
The Benefit Figure | Kangs POCA Advisory Team
The Prosecution has to determine the extent to which a convicted party has benefitted financially from the actual crime leading to the conviction. This might be a notional benefit, such as the amount put through an account for the purposes of laundering money, or the value of a goods and VAT on fraudulently produced invoices.
For certain types of crime, the benefit figure will be affected by assumptions of a ‘criminal life style’ being applied where, unless proven to the contrary, on the balance of probabilities by the convicted party, it will be assumed that:
- any property transferred to them after the ‘relevant date’, being six years prior to charge/summons
- property held by them after conviction
- expenditure by them after the ‘relevant date’
all arise as the result of general criminal conduct.
If the convicted party is deemed to have a ‘criminal lifestyle’, the general criminal conduct figure is added to the actual criminal conduct figure as the ‘recoverable amount’.
In the majority of cases, the recoverable amount will far exceed the assets of the convicted party with the result that the amount payable under the Confiscation Order will usually be to the value of the assets at the time or the available amount.
Improvement In Financial Standing | Section 22 POCA Applications
- If, under the Confiscation Order, the amount ordered to be repaid is less than the recoverable amount, then the Prosecutor or Receiver, being someone appointed to help enforce a Confiscation Order, can apply to the court under section 22 of POCA for reconsideration of the available amount which is due to be paid if new assets become apparent.
- If this application is successful, the Confiscation Order may be varied with the result that the convicted party will have to pay back the greater amount that has been assessed as the result of the new funds that have subsequently become available.
- There is no time limit restricting the re-opening of the case to consider the receipt of new funds although any fresh application must be just in all the circumstances and any new figure assessed for payment cannot be larger than the original benefit figure.
- The benefit figure may also be recalculated but only for a period of up to six years following conviction.
How Can We Help | Kangs Proceeds Of Crime Act Defence Solicitors
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