Under the Proceeds of Crime Act 2002 (‘the Act’), confiscation proceedings may well follow a criminal conviction and result in a large ‘benefit figure’ i.e the financial advantage gained from the fraud, having to be repaid under the resultant Confiscation Order (‘the Order’), especially where the existence of a ‘criminal life style’ has been established.
If the assumptions of a ‘criminal lifestyle’ are applied, the financial investigator, appointed by the Crown to investigate the financial affairs of the person convicted of the crime, will examine in considerable detail, all of that person’s affairs.
In calculating the ‘benefit figure’ regard will be had to:
- unexplained credits and debits to all bank accounts over a period of six years prior to the commencement of proceedings.
- all property owned at the time of conviction.
- all property transferred after conviction.
Unless it can be shown that any financial activity does not reflect the proceeds of crime the amount will form part of the final benefit figure to a sum generally in excess of the recoverable/available amount.
Any asset, even though it does not represent the proceeds of crime, can still be used towards repaying the amount due under the Order.
Unless it is believed that there exist hidden assets that remain undisclosed, the amount payable under the Order will be the value of the recoverable/available amount reached as the result of the investigations and negotiations to determine the correct figure.
How the Order May Be Satisfied | Kangs Confiscation Experts
The Order may be repayable by:
- in a situation where there are no assets, more than likely by the payment of the nominal sum of £1.
- realization of sufficient assets to enable the Order to be discharged in full.
- realization of all assets but which produces less money than anticipated. In this circumstance an application of inadequacy can be made under section 23 of the Act.
Confiscation Proceedings Re-Opened | Kangs Confiscation Team
In circumstances where the amount payable under the Order cannot be realized, the balance will remain outstanding and any future financial gains could well be seized in reduction of such balance.
The re-opening of the confiscation proceedings may well be by way of the issue of a further restraint order in relation to various assets which may even have been included in the original confiscation proceedings and which have subsequently increased substantially in value.
Such new proceedings could include inherited property or the profits arising from a successful business venture.
How We May Help You | Kangs Financial Crime Solicitors
Kangs Solicitors provides a team of experts experienced in all aspects of financial crime and which is frequently instructed by clients requiring assistance throughout the whole of the country from our London, Birmingham and Manchester offices.
If you need any assistance in regard to confiscation, please do not hesitate to contact our team through any one of the following: