Confiscation Proceedings under the Proceeds of Crime Act

Introduction to Confiscation Proceedings in Criminal Cases

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.

Defining 'Criminal Benefit' in Confiscation Proceedings

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.

Types of Criminal Benefit

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: UnderPoCA 2002, offences specified in Schedule 2 of PoCA 2002, and those over £5,000 or committed over more than six months,  lead to 'criminal lifestyle' assumptions being applied. These allow the court to assume that past financial transactions or currently held property are proceeds of crime unless proven otherwise by the defendant.

Strategies for Defending in Confiscation Proceedings

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.

Representation for Third Parties in Confiscation Proceedings

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. The Business Crime & Regulatory team at iLaw have extensive experience in representing interested parties in confiscation proceedings.

Key Actions for Those Undergoing Confiscation Proceedings

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.

Understanding Timeframes and Consequences of Non-Payment

Upon the making of a confiscation order, defendants may be granted up to three months to pay, with a potential extension of a further three months under certain conditions. Failure to pay a confiscation order leads to significant penalties, including a daily interest rate and likely imprisonment, underscoring the importance of expert legal advice and timely action.