Proceeds of crime (POCA)
When POCA came in there was a huge upsurge in confiscation proceedings. Prior to that, confiscation proceedings had been limited to the powers under the Criminal Justice Act 1988 and the Drug Trafficking Act 1994. POCA extended the confiscation powers to financial crime and gave the courts wide ranging powers to confiscate assets and to make ‘assumptions’ as to how certain assets had been obtained. If an asset was said to be the benefit of criminal conduct then potentially it could be confiscated. The court then looks to the available amount to find out what assets are held and the value of those assets. A confiscation order can be made in the sum of the benefit of criminal conduct or the sum of the available amount whichever figure is the lower. If this sum remains unpaid then a term of imprisonment can be imposed for non-payment. POCA also introduced a series of criminal offences relating to money laundering.
Confiscation proceedings only take place after someone has been convicted of an offence. More often than not the Prosecuting authority will take the view that the offences involved constitute a ‘criminal lifestyle’ under the Act. This can be done if the offence was said to have taken place over a period of six months or more. This means that the court can consider any items or acquisitions from the 6 years preceding the date of the commencement of the proceedings. The court is then entitled to assume that any transaction within that period is the proceeds of crime and it is up to the defendant to prove that it isn’t.
As a result of this the benefit of crime figure may be much higher than you first think. An example of this would be if some of the money gained from the crime is used to pay off part of a mortgage. This payment would then ‘taint’ the rest of the property and the entire equity in the property would be a benefit of the crime not just the mortgage payment figure. Our public access barristers are unlikely to simply accept the Prosecution’s view of the benefit of crime and ensure that the figures are meticulously challenged. We often instruct forensic accountants to assist with this to counter problems such as ‘double counting’ of assets. We always have it in mind that the higher this figure is, then the higher a possible term of imprisonment could be if there is a non-payment following a confiscation order. Our clients’ liberty is paramount.