The law in respect of recovering proceeds of crime can be draconian and tend to be strictly enforced.
If you have been convicted of a criminal offence, and the prosecuting authority believes that criminal activity has allowed you to make purchases that you would otherwise not have been able to make, you can be asked to make declarations in relation to your earnings. If you are not able to demonstrate that money or goods have been legitimately acquired, confiscation proceedings can be brought to recover this property. For those who have already been convicted of an offence, this can be a very difficult experience, as this would be in addition to the sentence imposed by the court. Even in cases where there has been no criminal conviction, civil recovery proceedings may be pursued to recover funds that the authorities suspect may be the proceeds of crime.
In either case, those who are subject to such orders face a significant challenge to defend themselves against these proceedings, and to retain possession of their savings, properties and possessions. The Criminal Defence Team at Wilford Smith specialise in providing legal representation in relation to all types of crime, and can provide you with the strongest defence in confiscation proceedings to help you retain your assets. We take pride in our reputation for unique representation, giving our clients a service that is exceptionally strategic and results driven. Contact our specialist Criminal Defence Team today to find out how we can help.
What is a Confiscation Order?
If there has been a conviction for a criminal offence, either after a trial or by way of a guilty plea, the prosecuting authority may seek a Confiscation Order. This gives the court powers to confiscate assets from you if they believe they are a benefit resulting from criminal activity. The Proceeds of Crime Act (POCA) 2002 makes it a criminal offence for anyone to use any property, including money, goods or shares, that has been obtained as a result of criminal activity. According to POCA, a court is required to decide if any assets or property that you own, or any expenditure that you have made in the six years prior to your conviction, were the result of criminal activity.
How will the prosecuting authority decide whether to pursue a Confiscation Order?
When deciding if your lifestyle has been funded by criminal activity, the court will have to take into consideration three factors:
- the type of crime that you have committed, for example drug trafficking, blackmail or money laundering;
- whether any other crimes committed by you in the previous six years have enabled you to benefit from a sum of £5000 or more; and
- whether there is evidence to show that an offence was committed for over six months.
If the prosecution case is that the assets that you own were acquired through criminal means, you will be required to prove otherwise. If you are not able to do so, the prosecuting authority may pursue a court order so that these assets can be confiscated.
What does the prosecuting authority need to prove to successfully seek a Confiscation Order?
One of the most challenging aspects of defending yourself against an application for a Confiscation Order is that the prosecuting authority does not have to prove that certain property is the proceeds of crime. Rather it only needs to be demonstrated that, on the balance of probability, money or goods have come into your possession because of criminal activity. You will then be left with the complex task of establishing that this property has come into your possession legitimately. The court is able to make ‘assumptions’ about how certain assets came into your possession, and after looking at what assets are held and their value, the court can then make a Confiscation Order for their removal. With a heavy burden of proof on the defendant to justify retention of these assets, it is vitally important to receive the right legal advice. The Criminal Defence Solicitors at Wilford Smith are experienced in acting for clients whose assets have been confiscated, or who are facing confiscation proceedings. We can work on your behalf, taking a ruthless approach to challenging every detail of a Confiscation Order, from the initial application through to enforcement.
Can I have my property confiscated even if I have not been convicted of an offence?
Yes, prosecuting authorities and investigators have civil asset recovery powers under POCA 2002, which enable them to initiate recovery proceedings where they have identified property they believe to be proceeds of crime, even if there has not been a conviction for a criminal offence. Authorities with these powers include the National Crime Agency (NCA), the Serious Fraud Office (SFO), HMRC and the Crown Prosecution Service (CPS). These powers can be used when it has been decided that it is in the public interest not to pursue a criminal conviction, or in cases where an individual has been found not guilty in court.
Why choose Wilford Smith?
Wilford Smith’s Criminal Defence Team appears in court regularly, and with years of experience in handing the most complex financial cases on behalf of our clients, we are best placed to advise you on challenging orders made under POCA. Our experienced Criminal Defence Lawyers are committed to providing a high-level service for our clients by developing robust defence strategies, ensuring the best possible outcome in any case. We know how distressing confiscation proceedings can be for you and your family, so we will ensure you are given understanding and pragmatic advice as part of our client-focused and highly personal service.
Contact our Confiscation Solicitors in England and Wales
Our Criminal Defence Solicitors are based in Sheffield and London and advice and represent clients throughout England and Wales. Contact us today on 0808 169 5677 to find out how we can help.