Conviction for certain criminal offences will result in the making of a Confiscation Order under the Proceeds of Crime Act 2002 (‘POCA’’).
Part of the process involved in calculating the financial liability of a defendant to be paid under a Confiscation Order will be the determination of the sum known as the ‘benefit figure’ (‘the benefit figure’) being the amount by which the defendant has benefited from the criminal activity complained of.
The benefit figure may include a sum based upon assumptions (‘the assumptions’) that a criminal life style (‘criminal lifestyle’) was enjoyed by the defendant and this article considers such assumptions and when they may be applied.
Our team is led by Hamraj Kang who is recognised as a leading expert in the field. He is one of only two solicitors nationally to be ranked as a ‘star individual’ for five consecutive years in the leading law directory Chambers & Partners.
Other members of the team are ranked in the Legal 500 and also ranked in Chambers & Partners.
For an initial no obligation discussion, please call our Team at any of our offices detailed below:
Criteria For An Order | Kangs Confiscation Defence Solicitors
- Under section 6 of POCA, the Court must consider making a Confiscation Order if:
- the defendant has been convicted of an offence or offences in proceedings before the Crown Court,
- the defendant has been committed to the Crown Court for sentencing in relation to certain offences/committed with a view to a Confiscation Order being considered and
- the Prosecutor asks the Court to proceed under section 6 or the Court believes it is appropriate to do so.
- The Court must decide whether the defendant has a criminal lifestyle and, if so, decide whether the defendant has benefitted from their general criminal conduct. (The Prosecution add to this general criminal conduct figure, the figure the defendant has benefitted from particular criminal conduct).
- If the Court decides that the defendant does not have a criminal lifestyle, it must still go on to decide if the defendant has benefitted from their particular criminal conduct.
Criminal Lifestyle | Kangs Financial Fraud Defence Solicitors
A defendant has a criminal life style if the offence(s) leading to conviction is/are:
- listed on Schedule 2 of POCA and which includes money laundering offences, drugs offences, people trafficking, terrorism and counterfeiting or,
- part of a course of criminal activity, or Is/are committed over a period of six months and the defendant has benefitted from the conduct that constituted the offence.
- If not listed in Schedule 2, the defendant will not be deemed to have enjoyed a criminal lifestyle, if the benefit from the offence(s) is less than five thousand pounds.
The Assumptions | Kangs POCA & Confiscation Solicitors
Under Section 10 of POCA, if the Court decides that the defendant has a criminal lifestyle, the assumptions applied are:
- that any property transferred to the defendant at any time after the relevant day, being the first day of a six year period ending with the day proceedings commenced against the defendant, was obtained by the defendant as a result of general criminal conduct.
- that any property held by the defendant at any time after the date of conviction was obtained a result of general criminal conduct.
- that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained as a result of general criminal conduct.
For the purpose of valuing any property obtained, or assumed to have been obtained, by the defendant, it was obtained free of any other interests in it.
The Court should not make an assumption if shown to be incorrect
, or there would be a serious risk of injustice.
Who Can I Contact For Advice & Help? | Kangs Criminal Defence Solicitors
If a court considers that a criminal lifestyle has been established and applies the assumptions the benefit figure payable by a defendant is likely to be substantially increased.
Usually, a Confiscation Order will reflect the value of the defendant’s assets but the application of the assumptions will usually exceed that amount thereby resulting in an outstanding debt payable by the defendant to which any subsequent financial gain by the defendant will be exposed.
POCA proceedings can be re-opened by the Prosecution at any time aimed at re-couping such subsequent financial gain.
In order to achieve a measure of certainty, it is essential for a defendant to try and avoid a finding of general criminal conduct and, in so doing, it is essential to seek expert assistance from the outset.
If we can be of assistance in any matter relating to allegations of financial crime or POCA please do not hesitate to contact any of our team.