What are confiscation proceedings?
Confiscation proceedings are separate from the criminal trial itself. Their purpose is not to determine guilt or innocence, but to assess whether a defendant has benefited from criminal conduct and, if so, the value of that benefit.
The court will then consider the assets available to the defendant and determine whether a confiscation order should be made.
In many cases, the financial issues involved are significantly more complex than the criminal allegations which gave rise to the proceedings
Criminal Lifestyle Allegations
The prosecution will allege that a defendant has a criminal lifestyle within the meaning of the legislation. The criminal lifestyle test will be automatically satisfied if the defendant is convicted of a qualifying offence but may also be satisfied if his offending consisted of multiple offences that generated at least £5,000 in criminal income.
Where such allegations arise, the court may be invited to apply statutory assumptions when assessing benefit obtained from criminal conduct.
The financial consequences can be substantial and long lasting - a defendant who comes into money 20 years in the future may find that money being confiscated to satisfy an elderly confiscation order.
The issues involved require detailed legal and evidential analysis. Early and careful preparation is therefore essential.
Challenging the prosecution case
The outcome of proceedings depends upon detailed examination of financial evidence and the proper application of the legislation. The aim of defence solicitors is to ensure a proper valuation is placed on the alleged benefit, which is frequently much lower than the prosecution's valuation.
We also investigate the funds available that can be paid to settle the confiscation order. For example, we will investigate the ownership of assets attributed to the defendant to assess third party interests that may limit the value of the asset for POCA purposes or remove it from the calculation entirely.
Our role is to identify the issues that genuinely matter, challenge unsupported assumptions and present a clear and persuasive case on behalf of our clients.
Enforcement and variation
The making of a confiscation order does not necessarily conclude matters.
Further issues may arise concerning enforcement, payment periods and the management of confiscation liabilities.
In some cases, there will also be the need to go back to court to seek a variation of the original order as time goes on, or to challenge the confiscation of money and property that comes into the defendant's possession later in life.
We advise clients on the practical and legal issues arising after an order has been made and provide ongoing representation where further proceedings become necessary.
Confiscation proceedings under the POCA scheme will typically involve very detailed examination of your life-style, habits, and spending through the lens of financial evidence such as:
The prosecution will seek to rely upon extensive financial material when calculating alleged benefit and available assets.
Careful analysis of the evidence is essential to successfully challenging assumptions and ensuring that the court is provided with a complete and accurate picture of your financial position.
Speak to a confiscation proceedings solicitor
If you are facing confiscation proceedings under the Proceeds of Crime Act 2002, contact Hartley's Solicitors for confidential advice regarding your position and the options available to you.
A strategic defence from the start
From the first moment of contact, we will protect your position, challenge the evidence and build the strongest possible defence on your behalf. Our solicitors have extensive experience in criminal litigation and a relentless desire to win.
Early advice can make all the difference
Relentless representation.
Get in touch today for a confidential discussion with a specialist criminal defence solicitor