Confiscation proceedings are a critical aspect of the legal process that follows a conviction involving financial gain or attempted financial gain. Governed by the Proceeds of Crime Act (PoCA) 2002, these proceedings aim to address key questions: has the defendant benefited from the crime, what is the value of this benefit, and what sum is recoverable from the defendant? While these questions appear straightforward, accurately determining the benefit and assessing recoverable assets require expert legal understanding due to their complexity.
The concept of 'criminal benefit' in confiscation proceedings is broad and varies based on case specifics. It may range from the value of stolen items in straightforward theft cases to intricate financial assessments in complex crimes, involving detailed analysis of tax records and company accounts.
There are two main categories of criminal benefit considered in confiscation proceedings:
• Particular Criminal Conduct: This pertains to the direct benefit from the offence itself. For example, if an individual steals £20,000, their benefit from particular criminal conduct is that amount.
• General Criminal Conduct: Under PoCA 2002, certain offences, particularly those over a specific value or committed over more than six months, may lead to 'criminal lifestyle' assumptions. These allow the court to presume that past financial transactions or currently held property are proceeds of crime unless proven otherwise by the defendant.
Legal defence in confiscation proceedings involves challenging the prosecution’s claims and should ideally begin as early as possible. Legal experts can join at any stage, even after the initial responses to the prosecution's assertions have been served. Lawyers specialising in these proceedings often collaborate with top barristers and financial experts to form a strong defence team.
Third parties with interests in assets under confiscation proceedings also have rights under PoCA 2002. Legal representation can help articulate these interests and ensure they are considered during the proceedings. If you have an interest in any asset subject to a confiscation inquiry, you should be represented by a specialist lawyer.
It is crucial for individuals involved in confiscation proceedings to seek advice from legal professionals who specialise in this area. Such expertise is vital in navigating the complexities of PoCA and ensuring a well-structured defence.
Post-confiscation order, defendants typically have up to three months to pay, with a potential extension of another three months under certain conditions. Failure to pay the order leads to significant penalties, including a daily interest rate and potential imprisonment, underscoring the importance of expert legal advice and timely action.
Navigating confiscation proceedings under the Proceeds of Crime Act 2002 can be exceptionally challenging and complex. It requires not just a deep understanding of the law but also strategic expertise in presenting your case effectively. James O’Hara, recognised by Chambers and Partners as an expert in “PoCA Work and Asset Forfeiture,” offers specialised legal assistance in these matters.
If you find yourself or your business facing confiscation proceedings, do not hesitate to reach out for a consultation to explore your options and ensure your rights are protected.
James O'Hara (Director at iLaw): james.ohara@ilaw.co.uk
