Confiscation Proceedings also known as POCA (Proceeds of Crime Act) proceedings can be very complex and confusing. Normally the Defendant will already been convicted of an offence and is now going to face another equally stressful set of proceedings. These proceedings will cover areas the Defendant is unlikely to have any understanding of with far reaching financial consequences not only for himself but for his family in addition to the likelihood of another prison sentence being imposed.
Often confused the Defendant will not always know the best route to take and which individuals are best placed to support him. Most often their first port of call will be a familiar solicitor and they not know for sure his track record or successful experience in cases of this nature. Their chosen solicitor will normally be relied upon to bring in all the other experts and professional that will be needed to prepare their case typically including forensic accountants, and barristers. The choice of these professionals - who can have a significant impact on their case will normally be based on their solicitors preference and prior relationships. Unfortunately the experience of most individuals in this position is that their defence is often handled particularly poorly due to both a lack of understanding and importance given to the proceedings by their solicitors, this is not fair to the Defendant whose your life is often on hold whilst the proceedings are moving forward.
How Are Confiscation Proceedings Undertaken
The Prosecution are able to indicate their intention to proceed under the Proceeds of Crime Act whenever and wherever it is clear that a Defendant has derived a financial benefit from a crime of which he has been found guilty. Normally confiscation proceedings commence once a defendant has been convicted of an offence, if either the prosecutor asks it to, or the court believes that it is appropriate to do so.
A Confiscation Order does not mean confiscating property as such, as the Court is looking at the potential 'benefit' the defendant has received from his criminal activities. The proceedings aim to ascertain what that benefit amounts to in financial terms, and then order a sum of money to be paid to reflect that benefit.
The basic structure of the confiscation regime asks three questions:
1) Has the defendant benefited from his criminal conduct?
2) What is the value of the benefit he has obtained?
3) What available sum is recoverable from him?
Once confiscation proceedings have started a financial investigation is carried out by police financial investigators (FIs), tracing the assets and liabilities, income and expenditure of the Defendant. Financial investigations require the cooperation, usually compelled through various legal orders, of the financial sector, law firms, accounting firms, tax authorities, benefits/social security offices, and the like. These organisations may be based within the local jurisdiction of the investigative body, in-country, or even overseas, and may include law enforcement authorities of foreign jurisdictions.
The findings of the financial investigation are relayed to a judge via a confiscation statement submitted by the FI to the prosecuting authority. A judge determines the merits of the case on a civil standard of proof and serves a confiscation order on the defendant. A confiscation order is in many ways like a fine: while a confiscation order specifies the sum to be paid, it does not specify which assets (e.g. savings, house, car) should be used to satisfy the order.
The fact is that at the end of this often lengthy process, the Court must fix a figure in assessing the benefit the Defendant has received. This is often referred to as the Benefit figure. Once this is complete the Court must fix the available or realisable benefit figure. This is the sum in cash which the Defendant is actually ordered to pay. As an example a defendant may have been found guilty of drug dealing and it is deemed that because he has been convicted of similar offences in the past he has effectively been leading a criminal lifestyle. Based on this criminal lifestyle the court may say that he has benefitted to the sum of £1 Million pounds. When the court then looks at the available assets of the individual such as his house, car bank accounts etc. they may only amount to £350,000 pounds - so unless challenged this would be the figure the Court would actually make a Confiscation Order for. It should be remembered that it may still be possible for the authorities to come after you in the future if they discover they can recover further sums from you i.e. you inherit a large sum of money.
The court will also fix a default sentence in the event that the defendant does not pay. The size of the default sentence is based on the size of the confiscation order - the bigger the size of the benefit the bigger the sentence and could be up to 10 years no less. If you don't pay it could lead to you serving an extra period of imprisonment after you have served your current sentence and to you being arrested and brought before a court soon after your release. Even if you serve a term of imprisonment for not paying your confiscation order you will still have to pay the order in full and any interest which has accumulated on your release. Interest accumulates at 8% every year on any confiscation order that has not been paid in full. For example, if an order is for £40,000, the daily interest rate is over £8.
There continues to be a steady rise in the number and size of confiscation orders made by the Courts. Indeed, the Government makes no secret of the importance it attaches to this method of gathering revenue.
There are now specialised units (within Her Majesty's Courts Service, the police and the prosecution) whose remit is to 'chase up' and enforce outstanding confiscation orders. All such orders are now part of a national computerised database and each order that has not been paid within the time ordered by a court is individually monitored and reviewed on a weekly and monthly basis.
How Best to Prepare for Confiscation Proceedings
Needless to say it's easier to prevent a fire happening than trying to put it out once it's started, hence the importance of preparing your POCA strategy as early as possible and not sticking your head in the sand thinking it's all going to be alright. The secret of POCA success is good preparation as early as possible. Every issue must be addressed and thought through in great detail - not leaving anything to chance.
This is an extremely complex area of the law and you will be facing skilled prosecutors and financial investigators who are well versed in POCA proceedings. The importance of your legal team cannot be underestimated together with the need to ensure they fully understand POCA both in theory and practical reality.
Under POCA, the case will just rely on the civil burden of proof as opposed to the criminal standards. Essentially, what that means is that as opposed to having to be proven 'beyond reasonable doubt' by the prosecution, the judge simply has to decide on 'the balance of probabilities'. Which scenario is more likely - yours or theirs? It may be unfair, but the onus is on you to prove your case and the points you raise in your defence. If you haven't proven your points, and your defence team haven't raised solid arguments, then your defence will fail.
Confiscation proceedings are often difficult and complicated and early preparation is essential if you are to plan an effective strategy to protect your interests. The experience of specialists such as forensic accountants and experienced POCA solicitors can make an immense difference to your position if they are involved early enough. In such a complex area where large sums of money can often be at stake it is extremely important that you engage the right individuals with the right skills to help fight your corner without delay.
POCA Defence can help you protect your interests if you are facing confiscation proceeding by helping you assemble a strong team of POCA specialists that can fight your corner. Having the right individuals on your side as early as possible can prove invaluable when mounting a challenge or defence to confiscation proceedings.
Visit our website for further information at http://www.pocadefence.co.uk