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The Proceeds of Crime Act 2002 (POCA) was introduced to prevent those found guilty of a crime from benefitting financially from that crime. Under this legislation the courts have wide ranging powers to confiscate assets acquired as a result of certain trigger offences ranging from drugs offences to money laundering and fraud.
The court can also make assumptions as to how certain assets have been obtained and these assets may also be seized if the defendant is unable to show that they have been acquired by legitimate means.
If confiscation proceedings are to be brought, they will be brought at the conclusion of the criminal proceedings and defendant will be required to serve a statement setting out all of his assets. The court can then make a confiscation order for the value of what the Crown Prosecution Service say is the value of the criminal conduct or the sum of the available amount, whichever is the lower sum. If this sum is not paid by a certain date then the defendant can be imprisoned for up to 10 years.
If the court believes that the defendant has hidden assets they can make a confiscation order for a much higher sum that the defendant has available.
If the defendant is shown to have enjoyed a criminal lifestyle over a period of at least 6 years then the court can consider any assets acquired during that time as being the proceeds of crime unless the defendant can show otherwise. This can result is some very high figures being calculated as the criminal benefit figure as if, for example, some of the money gained from crime was used to pay part of a mortgage, it could result in the entire equity in the property being forfeit.
It is vital to examine the figures put forward by the prosecution in detail as it is often possible to challenge them and to negotiate a lower figure. Even if the defendant has no assets the benefit figure must be carefully scrutinised as the court can make an order for a nominal sum but leave the door open to recover more money in the future should the defendant’s financial position improve.
When a confiscation order is made in the crown court, a date will be set by which time payment must be made and a term of imprisonment will be set in default if the sum is not paid in full by the set date. If payment is not made then enforcement proceedings can be brought in the magistrates’ court. It is vital to be represented in these proceedings as there is a real risk of the default prison sentence being activated.
At Wheldon Law we have many years of experience dealing with POCA offences and pride ourselves on our dedication and attention to detail that these offences need. If you are facing POCA proceedings or if you are facing an offence where there is a real risk of POCA proceedings being brought at the conclusion of the case, please call us now on 01442 242999 for free initial telephone advice from a qualified solicitor.
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