During prosecution for a criminal offence you may be asked to declare all your earnings in order to prove that you did not make purchases with money acquired as a result of criminal activity.
This can be a very difficult experience as, in addition to a possible sentence, you could also be required to justify any previous earnings and face the threat of having your assets confiscated. The law in respect of recovering proceeds of crime can be extremely harsh and in many cases will be strictly enforced. The Criminal Defence Team at Wilford Smith specialises in providing legal representation for all types of financial crime, and can provide the strongest defence to criminal allegations to help you retain your assets.
What is the Proceeds of Crime Act 2002 (POCA)?
POCA 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. When deciding if your lifestyle has been funded by criminal activity, the court will 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 £5,000 or more; and
- whether there is evidence to show that an offence was committed for over six months.
If the prosecution argues that assets you own were acquired through criminal means you will be required to prove otherwise. If you are not able to do so, these assets can be confiscated regardless of whether or not they represent genuine earnings.
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 prosecution may seek a Confiscation Order. This gives the court powers to confiscate assets from the convicted party if they believe that the assets are a benefit resulting from criminal activity. The court is able to make ‘assumptions’ about how certain assets came into your possession, and after looking at what assets are held and the value of those assets, the court can then make a Confiscation Order for their removal. With a heavy burden of proof placed 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 on behalf of those 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.
How is a Confiscation Order enforced?
When a Confiscation Order has been made there will usually be a timeframe set in which a defendant is required to pay, often no more than six months after the order is granted. If a defendant is not able to make payment before this deadline the consequences can be a default prison sentence for non-payment. If you are subject to enforcement proceedings and are not able to pay, our Criminal Defence Solicitors can apply on your behalf to have this period extended to avoid the pain and frustration of an additional prison sentence.
What is a Restraint or Freezing Order?
In situations where there are grounds for recovery, but the authorities believe that there is a real risk that property may be dispensed with, they may apply to the court for a Restraint or Freezing Order. If granted, this order enables a prosecutor to restrain or freeze all realisable property, and property which is received after the granting of the order. This can have a huge impact on defendants, preventing them from being able to run their business or even pay their legal costs. By instructing one of our solicitors, you will be best placed to seek the release of funds, maintain your income and pay debts, as well as to lodge an application for discharge of the order itself.
Cash seizure recovery
If the authorities believe that cash found during a raid is the result of criminal activity, or that it is going to be used in the course of criminal activity, it may be seized in anticipation of further investigation and the potential application for forfeiture. If you are able to prove, on the balance of probability, that this money has not been illegally procured or intended for a criminal purpose, then you will be able to recover it. Our experienced Criminal Defence Solicitors, with expert knowledge and skills in representing clients in relation to financial crimes, are best placed to help you recover any monies confiscated following a police raid.
Contact our POCA Defence Solicitors Sheffield and London
Wilford Smith’s Criminal Defence Team takes pride in its reputation for unique representation, giving clients a service that is exceptionally strategic and results driven. Financial crime is a complex area of law, but with years of experience in handing the most challenging financial cases on behalf of our clients, we are best placed to advise you on challenging orders made under the Proceeds of Crime Act. We know how distressing a Confiscation Order can be for you and your family, and will ensure that you are given sympathetic, straightforward advice as part of our client focused and highly personal service.
Contact our specialist Financial Crime Team today on 0808 169 5677 to find out how we can help.