Debt Recovery for Businesses and SME

An alternative way to increase cash flow

Whilst many of us are acutely aware of the threat to health that Covid-19 (Coronavirus) has brought in 2020, many of us are also aware of the threat it has brought to our companies and small businesses.

The business landscape of today amid the Coronavirus havoc shows a picture of uncertainty, due to reduced consumer/client engagement which has resulted in reduced profit margins and cash flow, with many companies simply unable to stay afloat.

It seems that with the instability in gaining revenue that companies are currently facing, they may have to look internally to increase cash flow. This could involve an assessment of their debt recovery procedures and whether they have outstanding debts owing.

Internal debt management

Businesses should of course look to manage overdue payments internally and can do this by keeping communication clear and on a regular basis with their clients. This will ensure a full understanding of any contracts entered into and payments to be made and can help to reduce disputes.

Businesses must also have a recovery procedure in place that is consistent and adhered to, but that is also flexible in any potential recovery arrangements that may be put in place. When an invoice is unpaid, act quickly and be willing to think alternatively to come to an agreement with your debtor to avoid the risk of lengthy litigation to recover what is owed to you. 

When debts remain unpaid

Maximizing debt collection should be a priority for businesses; to recover owed debts would increase available means to your business and would make for a happier and healthier balance sheet. 

The recovery of money owed can be a sensitive area and it is important that the process is managed promptly and with skill, especially during the current Pandemic. Cohen Cramer can provide a fast and cost-effective debt collection service to your business.

Do not let Coronavirus put your business off taking debt recovery further. Cohen Cramer is experienced in establishing which debtors are in difficulty and truly unable to make payment and ones may be simply looking to avoid making payment.   

For your free and confidential initial discussion to see how we can help your business run in an effective, efficient, and economical way, please get in touch with us on the following details.

We can help

To speak to a member of our Disputes Team please call either 0113 224 7808 or contact us at disputes@cohencramer.co.uk.

Click here to visit our online debt recovery form

Jess Leadbetter November 2021

Property Disputes: Defects

The pandemic has seen struggle and shortages across all sectors, however, one sector in particular which has been notably affected is construction. It is well known that the pandemic has caused problems in respect of the availability of many building materials across the country, which has put into jeopardy the ability to complete on many homes.

The problem

With the aftermath of the pandemic continuing, and shortages of materials, developers are under pressure to complete on properties by their buyers, and likewise after 18 months of uncertainty, and in some cases inability to carry on with developments, this may lead to possible future problems arising in respect of the finish and standard of properties.

If contractors are under pressure to complete on a property, a rushed job is likely to result in substandard workmanship leading to problems and snagging which need to be rectified.

Under the terms of the ten-year warranty that usually accompanies new build properties, developers are obliged to remedy defects reported to them within the first two years.  

But what happens if after a number of attempts to resolve any outstanding snagging issues with the Developer, nothing is done, or nothing appears to be being done in a timely manner. Where does that leave the buyer? Living in a brand-new property with numerous snagging issues, some potentially quite serious, with no resolution in sight?

In many instances opening a line of communication and negotiation with a developer will result in an amicable resolution whereby either defects are remedied, or monetary equivalent paid to carry out the repairs yourself, putting you in the position you should have been in on completion of the purchase.

Resolving property disputes

Unfortunately, this is not always the case. If negotiations fail or you consider the resolutions proposed by the developer are not adequate, then Cohen Cramer Solicitors can assist in trying to reach a resolution between you both.

If we are unable to reach an amicable settlement, then we can assist in taking steps to issue formal court proceedings against the developer. Depending on the losses incurred, these proceedings could be allocated to the Small Claims (losses less than £10,000), Fast Track (losses more than £10,000) or in more substantial cases Multi Track (losses more than £200,000). In order to determine the value of your claim, and depending on the value of the claim, it may be necessary to obtain an expert report compliant with the Civil Procedure Rules in order to establish the value of the claim before the Court.

In what can undoubtedly be a stressful and long road to remedying defects with your new home, Cohen Cramer can provide advice and guide you through the process to obtain a remedy to put right the wrongs cause by your developer.

How we can help

For further advice with building disputes or problems with new build properties, please contact James Colvin at James.Colvin@cohencramer.co.uk or call 0113 224 7805.

James Colvin: November 2021

Dealing with a POCA matter

Dealing with a POCA matter. The POCA team at Cohen Cramer Solicitors offers first-rate expertise representing people facing confiscation proceedings.  Lauren Bowkett, Head of POCA deals with the department’s most complex and high-profile cases in relation to the Proceeds of Crime Act 2002 (POCA).  She is here to tell you everything you need to know about your POCA case.

What is a POCA matter

If you are convicted of a criminal offence, you might face confiscation proceedings.  The law in respect of POCA is very harsh and you may be faced with losing all of your assets.  At  Cohen Cramer, the POCA team can guide you through the proceedings and challenge the confiscation figures proposed by the Prosecution. 

The figures are made up of the “benefit” figure and the “available amount” figure and it is important that both of these figures are challenged, as they stay with you until they are paid in full.  The benefit figure is the amount the Prosecution says you have financially benefitted from your conviction and the available amount is the financial value of the assets you have available now to pay towards the Confiscation Order.  Even if you do not have enough assets available to pay the benefit figure in full now, you still owe this amount until it is paid in full. 

At the time the Confiscation Order is made you pay the available amount figure.  If you do not pay the available amount figure on the Confiscation Order you will serve extra time in prison.  It is extremely important to have a legal team who knows exactly how to challenge the figures and make sure they are as low as possible, so you can pay the order.  

How we can help

Since 2016 we have saved our clients over £50 million from confiscation.  The POCA team at Cohen Cramer has done this by challenging every single proposed confiscation order and revisited confiscation order.  What we mean by “revisited” is applications made by the Prosecution under Section 22 POCA 2002.  As previously mentioned, when a confiscation order is made against you, you may not be able to pay the order in full now.  You may pay the available amount, but still, have a large benefit figure left outstanding.  The Prosecution can look at the assets you have many years after your confiscation order was made and if you have assets available, the Prosecution can apply for those to also be taken from you.

We are regularly instructed by clients who had different solicitors dealing with their cases up to the point of conviction and we are regularly asked by clients and solicitors to take over cases at the point of the confiscation proceedings.  This is totally normal and if you are legally aided we can make an application to transfer your Legal Aid to us for the purposes of POCA.  We also represent clients privately.

Our ongoing commitment to you

We do not abandon a client once the Confiscation Order is made.  The service we offer includes helping our clients right up to the Order being paid in full.  Clients have 3 months to pay their confiscation orders.  This, on application, can be extended to 6 months.  We regularly make these applications successfully. 

Also, if there is a shortfall and your assets do not sell for the value in the available amount figure on your confiscation order we can make an application to reduce the available amount under Section 23 POCA 2002.  This stops you from spending extra time in prison.

Our expertise allows us to deal with overseas matters concerning the payment of your confiscation order.  If you have assets abroad we can help you and we regularly deal with property abroad. Our team are with you every step of the way and deal with the confiscation proceedings here or abroad.  We also work with foreign banks and institutions and prepare legal documents for the return of cash to the UK.  We also have experience dealing with foreign matters concerning hidden assets.

If the Prosecution says you have hidden assets, this means the Prosecution believes you have assets hidden somewhere which they are unable to identify.  The Prosecution may say this if they believe it is probable you may be hiding something.  The standard of proof for the Prosecution is very low and can have a detrimental effect on a client if they do not obtain expert advice on this area.  That is because if it is not disproved you have hidden assets you will still owe this amount now even if the hidden asset does not actually exist.  This means extra time in prison.  It is also very difficult to prove something does not exist on your own and therefore it is so important to have the right legal team to do this for you.  

The POCA team at Cohen Cramer has a vast amount of experience dealing with any POCA issue, including hidden assets.  We can advise and guide you through this complicated area of the law and get you the best result, stopping extra time in prison.  If you need assistance contact the POCA team at Cohen Cramer. 

Get in touch with us today for your initial consultation

We will deal with confiscation cases anywhere in England and Wales.

For the help and assistance you need to get in touch with us today:

  • Call: 0113 244 0597
  • Email: poca@cohencramer.co.uk
  • Request a call back by entering your details into the form at the bottom of this page

Lauren Bowkett – November 2021

Causation in Professional Negligence Claims.

Causation in Professional Negligence Claims. As a firm of solicitors specialising in professional negligence claims, we deal with many clients who have suffered as a result of solicitors being negligent when dealing with their legal affairs.

The most common solicitor negligence cases we see relate, in the main to either civil litigation or property cases. Most clients understand the concept of negligence and believe that this is all they have to prove to be successful in a claim for professional negligence.

The one crucial aspect that we advise on in every case is what is known as Causation.

Causation is the key element you need to be able to establish if you are to win compensation from a solicitor in a professional negligence case.

In simple terms, this is proving that the negligence which has occurred has caused the loss that is being claimed. As with many areas of the law, this is not always as straightforward as many people initially believe. By using a couple of examples, I can hopefully give some insight into the issues which arise.

Let’s look at a property case.

A client instructed their solicitor in the purchase of a property that consisted of a substantial detached house together with a substantial area of additional land which was suitable for development. The client’s intention following the purchase was to live in the house, but also then to build a substantial detached house on the adjacent land.  The client’s solicitor did the legal work for the purchase and the transaction was completed. The client then obtained planning permission and started the building works on the new house to be built in the grounds. At that point, one of the neighbours threatened legal action as the proposed development was in breach of restrictive covenants which were attached to the land on which the building was taking place.

On taking legal advice it became clear that there were in fact these rights in favour of the neighbour which in reality meant that the site could not be developed as the client intended. It was clear that the solicitor who dealt with the purchase of the property had been negligent in failing to advise on the restrictive covenants in the title which restricted the ability to build on-site.

The client wanted to sue the solicitor for negligence. The client maintained that as a result of the negligence, he could not build a property for which he had planning permission. Had he been able to build the property, it would have been worth £500K, and after build costs, he would have made £250K in profit. At first glance, that seems to be a reasonable and sensible claim.

In this case, the solicitor admitted negligence but argued that they weren’t responsible for the loss of £250K as this was not caused by the negligence.  They maintained that the property was still worth what the client paid for it and regardless of the negligence, the client wouldn’t have been able to build on the land and in reality, the client had suffered no loss.

The easiest way of determining what losses have flowed from the negligence is to look at what should have happened had the solicitor not been negligent.

The question to ask is what would have happened had the solicitor advised about the restrictive covenant?

There are two potential answers to that question:

  • The first which is probably unlikely is that the client would have proceeded to buy the property regardless. If that is the option the client would have chosen, then there would be no loss.
  • The other alternative is that the client would have simply decided not to proceed as the property did not allow him to develop it. This is the more likely scenario.

In this case, the loss that had been caused by the negligence is the fact the client bought a property he would not otherwise have bought. The losses were the cost involved in buying and selling it, but not the loss of profit as he would never have been able to build on the land. The reason he could not make the profit was due to the fact there was a restriction and not due to the negligent act of the solicitor.

Another example in the field of litigation relates to building disputes.

A solicitor was instructed by a client to sue a builder who had constructed an extension for the client. The builder was a limited company and the client was suing for breach of contract as a result of significant defects in the extension. The claim was based on the costs to remedy the defects in the extension which were estimated at £20,000.00.  The solicitor wrote the necessary pre-action letter threatening a formal Court claim in the event the building company did not accept liability and agree to pay the remedial costs.

In response, the building company denied that the defects were substantial and maintained that they had offered to return and fix them, but the client had refused. Following receipt of that response, the solicitor simply sat on the case. About 6 months after the solicitor was instructed the building company went into liquidation which meant the client could not recover anything from the building company. The client claimed that the solicitor was negligent in not issuing proceedings before this happened.  The complicating fact, in this case, was the fact the building company had gone into liquidation. The solicitor accepted that he had been negligent in not issuing the proceedings, but claimed they were not responsible for any losses. They maintained that the reason the client had suffered a loss was due to the fact that the company had gone into liquidation and not as a result of their negligence.

As with the above example, we need to look at what should have happened had the solicitor not been negligent. In this case, had the proceedings been issued, they would not have been concluded prior to the company going into liquidation, and as such the client would have had no prospect of making a recovery. Oddly, in this case, the client was actually better off as a result of the negligence as he had not incurred the additional legal costs he would have incurred had the solicitor not been negligent.

Summary

In summary with regard to solicitors’ negligence in litigation cases, we need to look at the loss caused by the negligence.

If, in this kind of action, it is plain that the legal action could have been brought, and that if it had been brought that it must have succeeded, of course, the answer is easy. The damaged client would recover the full amount of the damages lost by the failure to bring the action originally.

On the other hand, if it can be made clear that the client would never recover, then it is equally plain that the answer is that he can get nothing but nominal damages for the solicitor’s negligence. As can be seen from the previous examples, most solicitor negligence cases involve complex issues with regard to Causation and in my view is the one thing that anyone contemplating bringing a claim should consider at an early stage.

We at Cohen Cramer have an experienced team of lawyers who are able to advise and guide you through this complex area.

We can help

To find the help you need get in touch with us today:

Causation in Professional Negligence Claims.

 

 

 

 

Michael McDonnell

Director and Head of Dispute Resolution

Brain Injuries in the Military

Brain Injuries in the Military. Cohen Cramer’s personal injury team has specialist knowledge in relation to claims for head and brain injuries.  Our service will help you develop a rehabilitation plan at the outset to identify your immediate needs with a view to getting you the most appropriate package of care and support.

Brain injuries often have a huge impact on the person involved and their loved ones.  We have many years experience of supporting people through often very traumatic and life-changing times to secure maximum damages for the future.

We have access to the best medical experts, neuro-rehabilitation experts including care, occupational therapists, vocational therapists, architects etc.  We also instruct specialist brain injury barristers nationally who will seek to achieve the best outcome for you in terms of rehabilitation and securing financial damages to recompense you for your injuries and financial losses.

If you have suffered a head or brain injury during your military service as a result of failures in the system of work, equipment, colleague’s negligence, or in any other way then you should contact us on 0113 2247837 and we will fight for your right to rehabilitation and financial support.

How are brain injuries caused?

Brain injuries usually result from trauma to the head or body. They can also be caused by a penetrating injury to the head, skull or brain. These injuries can lead to very serious long-term consequences or even death. Some examples of circumstances are as follows :

  • Assault
  • Gun-shot wounds
  • Road traffic accidents
  • Sporting injuries
  • Failures in medical treatment
  • Symptoms of brain injury
  • Mild traumatic brain injury can result in the following symptoms :
  • Headaches
  • Nausea/vomiting
  • Fatigue/drowsiness
  • Slurred speech
  • Loss of confidence
  • Cognitive behavioural or mental symptoms
  • Loss of consciousness from seconds to minutes
  • Mood changes
  • Sleep problems
  • Moderate to severe brain injuries can cause the symptoms above and also :
  • Loss of consciousness for several minutes to hours
  • Loss of co-ordination
  • Persistent headaches
  • Seizures/early onset epilepsy
  • Weakness in the numbness in the fingers and toes
  • Confusion
  • Aggression/agitation
  • Unusual behaviour changes

How to claim

Diane Davison, Head of Military Claims, is an expert in the highly specialised field of brain injuries. She also has experience of working in a Court of Protection Department and has a full understanding of the legal claims process to ensure appropriate arrangements are put in place throughout the conduct of a claim and post settlement where capacity is an issue.  Diane will seek to obtain early interim payments to assist with financial losses, care, equipment and any accommodation needs.  If you are unable to work as a result of an accident, either temporarily or permanently, then Diane will ensure appropriate payments are requested from whoever is at fault.

If you lose your military career as a result of a brain injury then Diane will ensure appropriate claims are made which can include future loss of career progression, loss of pension, loss of fringe benefits and allowances, loss of congenial employment and many others.

If you or a family member have experienced a head or brain injury at any time then please……

  • Fill in the contact form on this page
  • Telephone 01322 4787 to talk to our specialist team
  • Email mc@cohencramer.co.uk

 

Cohen Cramer Solicitors

Section 23 Proceeds of Crime Act 2002

Section 23 Proceeds of Crime Act 2002. When an individual has been convicted of a criminal offence that comes within the scope of Schedule 2 of the Proceeds of Crime Act 2002, they may subsequently find themselves subject to confiscation proceedings. Confiscation proceedings involve the Court imposing a Confiscation Order against the Defendant, which requires them to pay an amount of money equivalent to the value of the assets that are available to the defendant when the Order is made.

The available assets are listed within a schedule attached to the Confiscation Order and may include properties, vehicles, or jewellery deemed to be available to the Defendant. The defendant may choose to sell the assets listed in the order or pay the order by some other means.

Commonly, In circumstances where the defendant sells the assets in order to satisfy the order, the value placed upon the assets at the time that the Confiscation Order is made cannot be achieved. For example, where a piece of jewellery is sold at auction and sells for less than the initial valuation proposed or where the Defendant’s property may not be able to reach its full market value, as a result of market buoyancy or unforeseen expenses.

Varying the value of a section 23 Proceeds of Crime Act 2002 order

Where the estimated value cannot be reached often the Confiscation Order is left unpaid. In these circumstances, we may be able to assist by preparing a Section 23 POCA 2002 to vary the value of the Confiscation Order.

Section 23 applications can be made where the value of a listed asset cannot be obtained. The application seeks to reduce the amount payable under the terms of the Confiscation Order. The defendant must be able to provide evidence of the disposal of the asset and demonstrate that they have no further assets available to make further payments.

Often, where the defendant has provided clear and cogent evidence of the disposal and can show that the diminution in the value of the asset cannot be attributed to their conduct, the application may be agreed by consent with the Prosecution.

The court’s response

However, where an application is contested, the Court must determine the application to vary the order in a way that the Court thinks ‘just’ under Section 23(3) POCA 2002, after taking into consideration all of the points and evidence put forward within the application. For example, where a defendant fails to maintain mortgage payments and a property is repossessed, the Court may not consider it just to afford the defendant a significant reduction.

Section 23 of POCA is an important mechanism, as once the defendant has realised all of their assets if there remains a discrepancy between the value of the Confiscation Order and the actual amount that the assets realised, unless a Section 23 application is made the defendant will continue to be liable for the full amount. In addition to this, the defendant will also be liable for any interest that accrues on the amount outstanding and could face the prospect of serving a default sentence.

Case Study

In a previous Legal Aid funded case, the client approached Cohen Cramer to request assistance with the preparation of a Section 23 application, after the defendant was convicted of engaging in an unfair commercial practice. The Defendant’s available amount listed on the Confiscation Order was £986,815.76. After some investigation into the sale of the assets, we were able to successfully argue that the actual amount realised was £870,506.35 reducing the Defendant’s available amount by £116,309.41 and avoiding the imposition of a default sentence.

If a Defendant is continuing to pay a Confiscation Order despite having no further assets available, it is in their interest to seek expert advice regarding the preparation of a Section 23 application. If the Confiscation Order is not paid in full, the defendant will be ordered to pay interest and a default sentence could be imposed.

How we can help

If you find yourself in this situation, our expert POCA team is happy to advise and assist in the preparation of Section 23 applications.View Post

For expert POCA advice, get in touch with us today:

 

Tilly Twite June 2021

avoiding contractual pitfalls

Avoiding Contractual Pitfalls

Avoiding contractual pitfalls. In light of the fallout from the European Super League and the possible contractual implications for those teams which had signed up to the League and have since pulled out, we set out below five tips to ensure you are protected when it comes to contracting with another party.

An agreement may be required for anything from loaning money – whether commercially or to family/friends to agreeing to carry out a service in return for payment, for example, building an extension or decorating your home. Whatever the agreement, and no matter how formal or informal it may be, you should take steps to protect yourself in the event of fallout.

Verbal or Written – a contract can be formed whether verbally or in writing, however, it is always best to record the terms of the agreement in writing. This will help minimise any fallout should either party default on the agreement as you can refer to the contract terms as to how to deal with the breach. If a contract is made verbally, it will be difficult to prove what terms were agreed to then prove if that term has been breached.

Take professional advice – where possible, it is always best to take professional advice when drawing up a contract or agreement. A professional adviser can help incorporate terms into the contract to protect your position in the event a party doesn’t comply with the agreement.

Plan for the worst – whilst it can feel a bit awkward agreeing on what will happen in the event of fallout, it is easier to agree on what would happen whilst still on good terms. For example, should interest be charged on any unpaid sums?; do you have the right to withhold payment until defects are sorted?; can you terminate the contract without penalty? If these are discussed and agreed at the outset, in the event of a fall out you will be able to take speedier action to resolve the dispute.

Negotiate – a contract is normally for the benefit of all parties, whether that be paying a builder for their services to carry out work to your home, or loaning money in return for a payment in full with interest over a specified period. Having a clear agreement in which your interests are best protected on the best terms possible, means you shouldn’t shy away from negotiation. If it transpires at a later date that the agreement isn’t quite as beneficial as you thought, you are unlikely to be able to address this at a later date.

Due Diligence – we see time and time again people entering into agreements without carefully checking out the company or individual they are reaching an agreement with. Whilst it is not always easy to establish the financial position of the person you want to contract with, you should undertake as much research as possible to satisfy yourself that you are contracting with who they say they are; that they will be able to carry out the work you have paid for; or that any loaned sums can be repaid.

How we can help

We are often brought in to help clients at the point of the fallout of a contract. By taking into account the above steps, whilst we cannot guarantee you will not find yourself in the position of having to seek legal advice because a contract has been breached, it makes it easier to resolve any dispute if the above steps have been taken at the outset.

If you have any concerns over a contract or agreement you have entered into, about to enter into, or you are already at the stage where the contract has been breached and you are no longer benefitting from the contract, please get in touch on 0113 224 7808 or disputes@cohencramer.co.uk to discuss how we can help further.

 

Gemma Bowkett (Associate Solicitor) 5th May 2021

 

Avoiding contractual pitfalls

Section 22 Applications and Your Pension

Section 22 Applications and Your Pension. The POCA team was recently instructed in a case where the defendant, who had a Confiscation Order in 2010, was identified as having further assets available to him, including three pension funds. We were able to successfully negotiate a deferred payment for our client to maximise the money paid towards the Order and avoid paying penalty fees for realising the pension prematurely.

It is not uncommon for pensions to be included within Section 22 Applications. The question as to whether it is ‘just’ within the Proceeds of Crime is not straightforward and will depend on the individual circumstances. It is certainly a tough prospect for a defendant to face losing their nest egg that they were anticipating relying on in the future, especially when the money was saved from an early career, sometimes decades before any offending took place. This can be a particularly harsh reality when a conviction against a defendant’s name has the potential to limit future employment prospects.

The defendant, in this case, was also self-employed meaning that job security and retirement, particularly during Covid, was going to be very challenging without these funds.

The law in relation to S22 Applications

Case law shows us that there are many factors to be taken into account when considering Section 22 Applications to determine what is ‘just’, such as how long ago the Order was made; the amount outstanding; and the impact on the defendant (Padda). However, there has been no successful challenge in the Court of Appeal as to pensions specifically.

Pensions are also subject to strict tax rules. Save for exceptional circumstances, any withdrawal from your pension before turning 55 is classed as an ‘unauthorised payment’. While technically the pension can still be withdrawn – it will be subject to an eye-watering 55% tax which goes to HMRC as a penalty. For example, a pension worth £100,000 in total would see £55,000 being paid to HMRC and only £45,000 being paid towards the Confiscation Order.

In this case, the defendant had not yet turned 55. Nonetheless, the pensions were pursued by the Prosecution as an available asset as the money could be withdrawn, even though the defendant would have to pay a significant tax penalty for doing so.

How we helped

We were able to successfully propose a Variation to the Restraint Order allowing the funds to remain in his pension accounts until age 55. This had the effect of preserving the full amount of money to be later contributed towards the Order with no tax payable. Rather than the tax going to HMRC, the full amount was used to pay the Confiscation Order reducing the amount owing in future.

The Section 22 Application was withdrawn, and all other assets were removed from the proceedings. A Variation to the Restraint Order was drafted and sealed by the Judge.

We can assist our clients in reaching a practical, common-sense resolution to any POCA issue to ensure that their interests are protected.  If you need assistance with a Proceeds of Crime matter, contact us today.

We can help you with your Section 22 Application and your pension

We will deal with confiscation cases anywhere in England and Wales.

For the help and assistance you need to get in touch with us today:

  • Call: 0113 244 0597
  • Email: poca@cohencramer.co.uk
  • Request a call back by entering your details into the form at the bottom of this page

 

John Goodwin’s submission to the Justice Select Committee on Private Prosecutions (2)

RSPCA has submitted evidence to this inquiry, which outlines how it approaches prosecutions and the measures it has put in place to improve its transparency and accountability.

The Committee has also received a number of submissions that are critical of the RSPCA’s prosecutorial activities.

The Countryside Alliance suggests that it is inappropriate for the RSPCA to remain the principal prosecutor of animal welfare offences and that it should instead be the responsibility of public bodies.

John Goodwin, a solicitor for Cohen Cramer Solicitors who defends prosecutions brought by the RSPCA, highlights concerns over the way in which the RSPCA operates at the pre-trial stage, the issues surrounding the obtaining and execution of warrants, the

Law Commission’s Consultation on POCA 2002

The Law Commission’s consultation into potential reforms to the confiscation regime opened on 17 September 2020.  What this means is that the government body which advises in relation to changes to the law are considering what changes could be made to improve the effectiveness of the Proceeds of Crime Act 2002 and associated legislation in recovering more money from defendants.

At this stage, it should be remembered that these are proposals only and not enforceable as law.  This is a whistle-stop tour of some of the potential changes to the Act and Lauren Bowkett, Head of the POCA Department’s interpretation of how these could affect you in the future.

Key Proposals following the Law Commission’s Consultations on POCA 2002

The key proposals which could affect you include:

  1. Standard timetabling for POCA proceedings and introducing a six month maximum period between sentencing and the timetable being set.

At the moment, the Court allows up to two years to conclude confiscation proceedings from the date that the Defendant pleads guilty or is found guilty after trial.  This can be extended if it is found that there are exceptional circumstances.  The Law Commission is proposing that to speed up the delay in the process starting, the timetable should be fixed in six months from the sentence.

  1. Allowing the Court to make extra orders when the confiscation order is made, which are contingent on the actions of the Defendant i.e. if the Defendant doesn’t pay how the assets on the confiscation order could be recovered.

At this stage, it is unknown what sort of contingent orders could be made.  However, it will allow the Court to think ahead if payment is not made and make orders to enforce the sale or realisation of assets in advance.  At the moment such orders are not made in the Crown Court.  When a confiscation order is made, the benefit and available figures are stated, the time to pay, and what sentence the Defendant would receive in default if he was not to pay.  The new contingent orders would be much more tailored to the Defendant’s case.

  1. Giving the Court the power to impose financial penalties and forfeiture orders prior to the conclusion of the confiscation proceedings.

For example, if a Defendant has cash held in a bank account that has been restrained by the Prosecution, at the moment that cash will remain restrained until the outcome of the confiscation proceedings.  The Defendant will then sign a consent to the transfer the funds to pay the confiscation or compensation order (if there are victims) at the end of the proceedings.  Under the new proposals if there are victims the Court would have the power to make an order prior to the outcome of the confiscation proceedings to return cash to the victims.

  1. If Defendants are sent to prison for failing to pay their confiscation order, they will not be automatically released unconditionally halfway through their sentence. They will be released on licence and returned to prison if they still do not pay.

If a Defendant does not pay their confiscation order, they are sent to prison for the amount of time outlined in the confiscation order.  They are then released unconditionally after half of that time.  For instance, if the Defendant was sentenced to six months imprisonment in default, they would be released after three months.  Under new proposals, the Defendant would still be released halfway through their sentence.  However, if they do not take steps to then pay the confiscation order, they can then be returned to prison to serve the remainder of their sentence.  At the moment, once released from prison, Defendants cannot be returned.

  1. If Defendants cannot pay their confiscation order, they will need to provide more detail concerning their financial circumstances and evidence in support of this

At the moment, once a Defendant has been to prison for non-payment of the confiscation order, they can be summonsed to court for what can be described as a financial penalty hearing.  At the moment, the Defendant is asked to complete a form that sets out the Defendants income and outgoings.  No evidence is required to support the information in the form.  It is assumed that this recommendation is in relation to that process.

  1. Judges to be able to pause or reduce the accrual of the daily rate of interest at the Enforcement Court to incentivise the Defendant to pay the remainder of the confiscation order.

Once the Defendants time to pay expires, which could be three months from when the confiscation order is made or up to six months if an extension has been granted, a daily rate of interest begins to accrue.  At the moment, there is no power to stop interest accruing and it accrues until the confiscation order is paid in full.  It is proposed that Judges in the enforcement court have the power to pause or reduce the accrual of the daily rate of interest to assist and perhaps make the interest accruing more manageable.

These are only some of the proposals following the Law Commission’s consultations.  Their consultation closes in December and after this time, it will become clear, which, if any of these proposals become law.  POCA is a complex and constantly changing area of the law.  If you face confiscation proceedings, make sure you instruct specialist lawyers as soon as possible.

We can help

Get the help you need at any stage of your confiscation proceedings.

How Lauren and her specialist team can help you:

  • Challenge confiscation orders
  • Reduce confiscation orders
  • Defend enforcement proceedings
  • International asset recovery
  • Account Freezing and Account Forfeiture Orders
  • POCA Conveyancing

Call: 0113 244 0597

Email: POCA@cohencramer.co.uk

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