A Confiscation Order, imposed under the Proceeds of Crime Act 2002 (‘POCA 2002’), was recently considered by the Court of Appeal in R v Parczewska  EWCA Crim 750 when it decided that, in the lower court, the Judge had correctly imposed a Confiscation Order upon the Appellant given that she had benefited from the proceeds of the crime for which she had been convicted.
Although it had previously been decided that, when considering the length of her prison sentence, she had played a lesser role in the conspiracy with which she was involved, this finding did not affect the efficacy of the Confiscation Order.
Amandeep Murria of Kangs Solicitors outlines the circumstances of the matter.
The Team at Kangs Solicitors is renowned for its expertise in defending clients facing POCA Proceedings at every level and we are recognised by the leading law directories, the Legal 500 and Chambers & Partners, for our work in relation to confiscation, restraint and cash seizure work.
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The Circumstances | Kangs POCA Team
Appeal against length of Prison Sentence
- The Appellant had been convicted, with other members of her family, of conspiracy in respect of offences involving labour exploitation and the acquisition of criminal property.
- Upon conviction the Appellant received a prison sentence of eight years imprisonment.
- The Appellant appealed the length of her sentence upon the basis that, although she played an important role within the conspiracy, her participation was relatively limited.
- The court accepted her contention and her sentence was reduced to five and a half years imprisonment.
Appeal against Confiscation Order
- As a consequence of her success in securing a reduction in her prison sentence, the Appellant filed an Appeal in respect of the Confiscation Order in which she argued that she did not obtain the property alleged and that she should not be held to be an equity partner.
- It was further argued that as she had performed a limited role, as accepted during her appeal against sentence, it should be acknowledged that, in the Confiscation Proceedings, she did not acquire a joint benefit in the proceeds of crime.
The Relevant Law | Kangs Financial Crime Solicitors
POCA 2002 states:
S.76 Conduct and benefit
(1) ‘Criminal conduct is conduct which—
(a) constitutes an offence in England and Wales, or
(b) would constitute such an offence if it occurred in England and Wales.
(2) General criminal conduct of the defendant is all his criminal conduct, and it is immaterial—
(a) whether conduct occurred before or after the passing of this Act;
(b) whether property constituting a benefit from conduct was obtained before or after the passing of this Act.
(3) Particular criminal conduct of the defendant is all his criminal conduct which falls within the following paragraphs—
(a) conduct which constitutes the offence or offences concerned;
(b) conduct which constitutes offences of which he was convicted in the same proceedings as those in which he was convicted of the offence or offences concerned;
(c) conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences concerned.
(4) A person benefits from conduct if he obtains property as a result of or in connection with the conduct.
(5) If a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage.
(6) References to property or a pecuniary advantage obtained in connection with conduct include references to property or a pecuniary advantage obtained both in that connection and some other.
(7) If a person benefits from conduct his benefit is the value of the property obtained’.
Court of Appeal Decision | Kangs Confiscation Order Appeal Solicitors
- The Court of Appeal disagreed that when assessing the Appellant’s liability under the Confiscation Order the same approach should be adopted as that followed when considering the length of her prison sentence.
- There exists a difference in the criminal standard of proof, applied when considering the length of prison sentence to that when considering the benefit figure to be inserted in a Confiscation Order, being the civil standard of proof.
- The lower Court had followed the correct procedure when determining the contents of the Confiscation Order.
- The appeal was dismissed.
How Can We Help? | Kangs National POCA Solicitors
If you are subject to a Confiscation Order and are concerned that you may not be able to meet your obligations as the result of the value of your assets being inadequate, please feel free to contact the team at Kangs Solicitors which has a wealth of experience in all aspects of POCA proceedings.
We are here to assist and happy to provide an initial no obligation consultation at our offices in London, Birmingham and Manchester or by telephone/video conferencing.