Amandeep Murria of Kangs Solicitors discusses the position when the State is seeking to seize the assets of a person who is caught in possession of criminally acquired assets. The provisions are contained within the Proceeds of Crime Act (POCA) 2002.
Quoted from R -v- May  UKHL28:
“Where….. a criminal has benefited financially from crime but no longer possesses the specific fruits of his crime, he will be deprived of assets of equivalent value, if he has them. The object is to deprive him, directly or indirectly, of what he has gained”.
The Confiscation Law | Specialist Confiscation Solicitors
Under the Proceeds of Crime Act 2002:
- For the purposes of deciding the recoverable amount, the available amount is the aggregate of:
A) the total of the values (at the time of a Confiscation Order) of all the free property then held by the Defendant, minus the total amount payable in pursuance of obligations which then have priority; and
B) the total of the values (at that time) of all tainted gifts.
- An obligation has priority if it is an obligation of the Defendant:
A) to pay an amount due in respect of a fine or other order of a Court which was imposed or made on conviction of an offence and at any time before the time the Confiscation Order was made; or
B) to pay a sum which would be included among the preferential debts if the defendant’s bankruptcy had commenced on the date of the Confiscation Order, or his winding up had been ordered on that date.
- “Preferential debts” has the meaning given by Section 386 of the Insolvency Act 1986 (c.45).
A Recent Case | Kangs Solicitors | Specialist Confiscation Solicitors
Our client faced Confiscation Proceedings by virtue of the Proceeds of Crime Act (POCA) 2002 before Birmingham Crown Court. The Prosecution were alleging that our client had significantly benefited from his particular and general criminal conduct in the sum of over £1 million.
The Prosecution were initially suggesting our client had benefited from both particular and general criminal conduct in the sum of over £1 million.
The available amount of assets belonging to our client for confiscation purposes was calculated by the Prosecution to be in the region of £900k.
A thorough financial examination was undertaken on behalf of our client and areas of confiscation law sought to be relied upon by the Prosecution were vigorously opposed and successfully challenged.
As a result, we were able to negotiate with the Prosecution and a Confiscation Order in the sum of £100k was agreed which was a substantial reduction from the sum the Prosecution were initially pursuing of £900k, referred to above.
The net result was that the available amount was fixed at £100k.
Our client was delighted with the result which had been achieved through a complex and protracted process which included significant forensic accountancy work.
Kangs Solicitors | Specialist Confiscation and POCA Solicitors
At Kangs we have a dedicated team specialising in Confiscation, POCA, Asset Forfeiture and Restraint Order work and we are happy to provide clients and fellow professionals with an initial ‘no obligation’ consultation.
Arrangements can be made to meet at any of our 3 offices – Birmingham, London or Manchester.