Category Archives: POCA

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

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

 

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

Request a call back by entering your details into the form at the bottom of this page.

 

Confiscation Proceedings in a Nutshell

At Cohen Cramer, the dedicated POCA Department specialises in all proceedings under the Proceeds of Crime Act 2002 and associated legislation.  We have the expertise and knowledge to deal with the most complex of matters and can assist with any issue you face. Leah Arksey, our expert Paralegal, offers her overview of POCA, to explain what exactly you could find yourself facing during the proceedings.

If you have recently been convicted of a criminal offence, you may be facing confiscation proceedings under the Proceeds of Crime Act 2002.  If this is the case, during the Sentencing Hearing, a POCA timetable will be set, outlining various dates for the service of the Defence and Prosecution statements.

The Statements

You should be provided with comprehensive information surrounding the POCA proceedings you face by your solicitors. If this hasn’t happened, it may be that your current solicitors are unable to offer you the expert advice you need.  POCA is a very complex area of the law and you will need specialist legal advice to get you through the proceedings. As mentioned, if POCA proceedings are to be instigated, a POCA timetable will be set which marks the date for service of ‘The Statements’ – the Section 18 Statement, Section 16 Statement and the Section 17 Statement (do not worry, we can count – this is the order that the Statements will be served in).

The S.18 Statement

The Section 18 Statement is served by the Defence and this outlines what your ‘available assets’ are. This can be anything from property, cash, cars, jewellery, pensions and savings, designer clothes and handbags, to Bitcoin. The list is endless and so the Section 18 Statement will outline exactly what assets you have available (over the value of £500) that can be sold to pay off the Confiscation Order made against you.

The S.16 Statement

Following this, the Prosecution will then serve the Section 16 Statement, which outlines the Prosecution’s case against you. The Prosecution will calculate what they think your financial benefit from the crime is and will outline the assets they think you have available to pay it back.  The Section 16 Statement is prepared by a Financial Investigator, and therefore it is common practice for them to go through your bank accounts to highlight any unidentified credits that they believe is from criminal conduct.  The Financial Investigator can go back 6 years and this amongst other things is added to your benefit figure.  When you see the statement, you will be surprised how large the benefit figure is.  However with expert assistance, this can be reduced substantially.

The S.17 Statement

Within POCA proceedings, the ‘burden of proof’ is on the Defendant to provide the necessary evidence to challenge the Prosecution’s case.  So it is important that you receive expert legal advice and representation for these proceedings. The Section 17 Statement that is served on your behalf by your solicitors must be prepared with the utmost care.  The Defence team must gather as much evidence as possible to challenge the figures put forward by the Prosecution and your solicitors should guide you through this. In many cases, especially where the Financial Investigator has noted unidentified credits, you must consider each individual transaction and provide evidence showing the legitimacy of that transaction.  Often we instruct a Forensic Accountant.

It is also important to challenge the valuations the Prosecution place on the available assets by obtaining expert valuation reports.  The Prosecution often undertake simple desktop valuations that are not accurate.  We will explain why this is important later.

Third-party interest applications

We also represent family members where the Prosecution are seeking to argue that their assets represent the proceeds of crime, when in actual fact it belongs to the family member, or a family member is entitled to an interest in the asset. For more detail about this, see our blog, ‘Section 10A POCA – Third Party Interests’.

Paying your Confiscation Order

Following the service of the statements, there is usually some to-ing and fro-ing between the parties in order to settle on a benefit and available amount figure.  Once the case has concluded, either by way of settlement or following a Contested POCA Hearing, a Confiscation Order will be made. This will outline the benefit figure, the available amount figure and will also list the available assets, if there are any. There will also be a ‘time to pay’ deadline given, which is usually three months.  This can be extended by a further 3 months (6 in total) by way of a Section 11 application. It should be noted that once the time to pay has expired, interest will accrue daily.

You will need to sell all available assets in order to settle the Confiscation Order. At Cohen Cramer, we have the necessary knowledge and expertise to assist our clients with the sale of their assets. We also have a dedicated POCA Conveyancing Department to assist with the sale of property, both in the UK and overseas.  We have an expert panel of foreign agents and lawyers to assist with foreign sales. For more information about this, see our blogs, ‘Selling Assets Abroad’ and ‘Potential Problems with a POCA Conveyance’. We also work closely with foreign banks and institutions and have the expertise to prepare the legal documents required for the repatriation of funds from overseas.

Get the Help You Need

For the help and assistance you need 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

For the Quality Legal Service that You Deserve

 

 

The Big Freeze – The Rise of the Account Freezing and Account Forfeiture Order’s.

Account Freezing and Forfeiture Orders. Over the last year, there has been a substantial rise in the use of Account Freezing Order (AFrO) and Account Forfeiture Order (AFO) schemes under the Proceeds of Crime Act 2002 (POCA).

Increased use of AFrO and AFO

A Freedom of Information request showed that 166 orders to freeze accounts were issued by HMRC in 2019/2020 which is up 177% from the previous year.  The reasonably low threshold for authorities to obtain an AFrO makes them an obvious choice in the Prosecution tool kit to investigate potential proceeds of crime, without a criminal conviction.  However, there are ways to challenge them and the instruction of a specialist POCA lawyer is the best method.

For many years, prosecuting authorities have had the power to seize cash from anyone they suspect to have obtained it unlawfully.  It is then forfeited unless evidence can be adduced to satisfy the Court that the cash has in fact come from a legitimate source.  These powers have been extended under the Criminal Finances Act 2017 with the implementation of the AFrO and AFO scheme.

Reasonable Grounds for Suspicion

For the prosecuting authority to obtain an AFrO under Section 303Z1 of POCA they must have ‘reasonable grounds’ for suspecting that money held in a bank account is recoverable property or that it is intended for unlawful conduct.  ‘Reasonable grounds’ must be on an understandable and proper basis.  The application is usually made, without notice, to the Magistrates’ Court and the prosecuting authority must also inform the court of any reasons why the money in the account may be legitimate.

If the Court agrees to make an AFrO, the intended recipient will then be informed and the AFrO served on them.  One of the most significant decisions will then be whether the appellant wishes to challenge the order.  There may be a number of different ways to do this and instructing an expert POCA lawyer will assist in making an informed decision on how to proceed.

Challenging an Order

There is no Legal Aid funding to challenge an AFrO or AFO.  The Respondent is not facing criminal proceedings and so may find that all of their money is tied up in the frozen account.  If that is the case a specialist lawyer can seek a variation to release money to cover reasonable living expenses, legitimate business expenditure, and legal expenses if necessary.  The appellant should be able to obtain a ‘no quibble’ initial sum so get the ball rolling.

If the Respondent does not challenge the AFrO within the allotted time period an application may be made to forfeit the money in the bank account by the prosecuting authority.  They must satisfy the Court that the money held in the bank account is recoverable property or intended for unlawful conduct and if so, the money will be forfeited.  It is then distributed under the Asset Forfeiture Initiative Scheme.

There is currently no easy route to appeal an AFrO.  The legislation does not provide for this and so it is absolutely paramount that the moment you receive an AFrO you seek specialist advice.

Get the Help You Need with Account Freezing and Forfeiture Orders

How Lauren and her specialist team of lawyers can help you:

  • Exclude funds for living expenses.
  • Challenge the lawfulness of any AFrO.
  • Challenge the AFrO or AFO.
  • Advise third parties.
  • Reach a settlement.

For the help and assistance you need 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

For the Quality Legal Service that You Deserve

 

Section 22 POCA 2002.  Is it just in lockdown?

In recent years there has been a huge rise in the number of Section 22 applications, which seek to increase the available amount in Confiscation Orders.

It can be argued by your solicitors that an application under section 22 of the Proceeds of Crime Act, is unjust contrary to s.22(4)(a), which states that ‘the court may vary the order by substituting for the amount required to be paid such amount as it believes is just’

POCA gives the Court broad discretionary powers to determine whether the s22 application is just, and whilst there is some guidance in a handful of reported cases, it is clear that applications are case-specific and therefore considered on a case by case basis.

Notwithstanding this, what is very apparent from cases such as Padda[1], is that when considering an application for a variation of the available amount, the Court must consider factors which include:

  1. The amount outstanding
  2. The amount which might now be available
  3. The length of time since the original Order was made
  4. The impact on the defendant
  5. Any other consideration which might properly be thought to affect the justice of the case

It is important to point out that Section 22 applications do not always concern assets which have been hidden, or where the defendant has received a significant windfall. Common applications that are seen by us concern assets, acquired completely legitimately, many years after the Confiscation Order was made. Such examples include equity in the family home, savings, pension funds, and vehicles.

Impact of Corona Virus

Due to the impact of the current COVID-19 pandemic and the uncertainty that we face in the many months after lockdown, it is important that ongoing and new s22 applications are revisited by your solicitor.  The consideration of what is’just’ could have damming effects on your family and your livelihood.

The Court’s capacity to deal with S22 applications has been significantly reduced by the current crisis, with many Court’s closed, and others dealing only with the most urgent cases. In the meantime, your assets are restrained and your bank accounts frozen and defendants are unable to get on with their day-to-day life.

Restraint Orders cannot be imposed indefinitely, and this, therefore, begs the question as to whether any new applications can be justified, when it is not known, realistically, how long it will take for the matter to be brought before the Court?

Further to this, a vast amount of the population has been impacted financially by the pandemic. Whether it be that an individual has been made redundant, furloughed and receiving a reduced income, or is self-employed and has lost revenue. We are all in the dark as to the lasting effects the COVID-19 crisis will have on the economy and employment.  So, with all this uncertainty, can it be said that a s.22 application, to confiscate savings which could be used to provide financial security, be just?

In addition, it is increasingly common for family homes to be the subject of s22 applications. Quite often, property is a very valuable asset to the defendant, not in monetary terms, but because it provides a home for their family.  A defendant can find alternative means by which to satisfy the order and in subsequent years, the property may increase in value.  The Prosecution then seeks to identify this as an asset which would enable the defendant to make further contributions towards the order.

Given social distancing guidelines and the economic uncertainty, with many banks now not providing mortgage offers, the property market is expected to slow. Is it ‘just’ to force a defendant to sell a property in circumstances where their prospects of achieving a sale are limited?

It should be pointed out also, that upon the Confiscation Order being varied, the defendant will be given a period of time to make payment. The legislation allows a maximum of 6 months in which to pay, after which time the amount is subject to interest, and the defendant risks a default sentence in prison.

It is a realistic prospect, therefore, that upon variation of the order, the defendant will be left in an inevitable position where they are liable for interest on the value of the Confiscation Order, or worse still, face the prospects of serving further time in prison, because through no fault of their own, they have been unable to find a buyer.

Get the help you need

Section 22 applications have the prospect to be influenced by the current circumstances, and it is now more important than ever that defendants, subject to such applications, are properly represented.

If you need advice or assistance in relation to a Section 22 application, contact Cohen Cramer.

[1] R v Padda [2014] 1 WLR 1920

 

 

Section 10A POCA – Third Party Interests

Section 10A of the Proceeds of Crime Act in 2015 allows the third party rights to be considered in confiscation proceedings.

S10A allows the Court to hear third party representations in relation to an asset that is subject to a confiscation order.  If the Court is satisfied it would be unjust to include the third party interest as part of the confiscation order, then it can be removed.

By way of example, if the asset to be seized is a house, the Court may place a financial value on that interest.  So, a former spouse who had jointly owned a property with the convicted party may seek to claim their interest in the amount they’d spent on a building extension or the amount they’d paid towards the mortgage.

Non-Financial Contributions

Cohen Cramer Solicitors have also made a number of successful Section 10A Applications for non-financial contributions. This is done by detailing the party’s involvement with the convicted party in terms of their marriage and domestic responsibilities.  Non-financial contributions can be more difficult to argue as they don’t have a prescribed monetary value however these still apply in many circumstances and should, therefore, be considered where possible.

Protecting your interests.

While Section 10A Applications are becoming more prevalent, the law is still continually developing in this area.  Innocent third parties may find themselves unwillingly involved in confiscation proceedings and risk losing substantial assets.  Therefore, it is crucial these Applications are thoroughly prepared with the correct supporting documents so that the Court may be persuaded, and third parties do not lose their contributions in amidst the confiscation proceedings.

Failure to put forward a third parties’ interest will likely mean their contributions are erased as the asset will instead be used to pay a confiscation order.

If you are not a party to criminal proceedings and concerned about your assets being subject to confiscation, please contact us.

ANGELA TERENZINI | Caseworker | Proceeds of Crime Department

s10a POCA - Third Party Interests - Angela Terenzini Cohen Cramer

 

 

 

 

POCA and the Insolvency Act 1986

A recent case concerning the sale of a property at a below-market price has highlighted some of the interaction between part 9 of the Insolvency Act 1986 and POCA 2002.

Under sections 339, 340, 423-425 of the Insolvency Act, certain transactions have the potential to be unwound by a Trustee in bankruptcy where they fall foul of those provisions.

Often, when it comes to selling a property the property will be sold at an undervalue (i.e. for less than the market value). This in order to achieve a quick sale.

Such a transaction would normally fall foul of one of the above-stated sections of the Insolvency Act where the seller was to later become bankrupt. However, under section 417 of POCA, any assets which are subject to a restraint order made under the Act are exempt from the provisions of the Insolvency Act. This means that where a property is being sold for less than the market value pursuant to a restraint order, this transaction cannot fall foul of part 9 of the Insolvency Act.

(note. The position in respect of assets subject to a restraint order where the defendant is already bankrupt is different and does not form part of this article).

Robert Blair, Cohen Cramer Solicitors. 15/08/19

Selling Assets Abroad

Advice and Assistance from Cohen Cramer 

If the Crown Court makes a Confiscation Order against you will be required to sell any assets that you own to make the payment. The onus is on you, the Defendant, to realise any assets that you have within the timeframes permitted by the Court.

Where a Defendant has assets to sell, the Court will usually allow the Defendant 3 months to pay the order. This is extendable, on application to the Crown Court, by a maximum of a further 3 months. There must be genuine reasons to justify an extension of time. After this time expires, interest will accrue on the amount owed.

Complying with your order

Complying with an order can be extremely problematic if you have assets in foreign jurisdictions. This could be a holiday home, commercial property or funds held in foreign banks.

When repatriating foreign assets it is important that you understand the required procedure so as to ensure compliance with the Country’s regulations and tax laws.

The procedure differs depending on the location of the assets. As it is the Defendant’s responsibility to pay the Confiscation Order, you are unlikely to receive any assistance from Prosecuting authorities regardless of the complexity of the matter.

Possible problems with compliance

You must also be aware of the time that it takes to realise the asset and repatriate the proceeds to the UK. This is not always a quick process and can be problematic as the Court only allows limited time for payment of the Confiscation Order. It is therefore important that the procedure is completed as efficiently as possible to avoid further interest accruing.

For clients who are detained or subject to a Serious Crime Prevention Order which restricts travel, dealing with assets overseas is always problematic. Members of our Proceeds of Crime Department have in these circumstances represented client’s interests overseas by travelling to the Country in which the assets are located to investigate legal issues, assist with completion formalities and repatriate funds.

You should also be aware that failing to realise assets and satisfy the Confiscation Order within the time limit may result in the imposition of a default sentence. It is therefore extremely important if you hold any assets overseas that you obtain advice as soon as possible. This will allow appropriate steps to be taken to realise the assets so that any delay can be justified to the Prosecuting Authorities. This will help to avoid the imposition of a default sentence.

The solution to your problems

Our specialist Proceeds of Crime Department are familiar with the complications faced by Defendant’s required to sell assets overseas. We have represented clients faced with such difficulties and successfully dealt with the realisation of foreign assets and repatriation of the proceeds following sale.

Our specialist POCA team are adept at seeking solutions to problems in relation to foreign assets, realising foreign property, repatriating funds and avoiding the imposition of default sentences.

If you are having difficulty selling assets in a foreign jurisdiction or repatriating the funds to pay your Confiscation Order we can help.

Please contact our POCA team:

call: Lauren Bowkett on 0113 2247811
email: poca@cohencramer.co.uk

Article by Lucy Ryczany (May 2019)

Potential problems with a POCA conveyance

As part of POCA proceedings, you will often look to the sale of a property to satisfy your confiscation order. If, as part of your order you are required to dispose of residential or commercial property we strive to complete the sale within the required and appropriate timeframe as set out in POCA 2002.  This is a maximum of three months and this can be extended to up to six months on application by your POCA solicitors. You do however need to be aware that there are many different issues that can arise throughout the life of a POCA property sale once solicitors have been instructed. In this short blog, I am going to look at a couple of the more common problems that can arise and how we can help as specialist POCA conveyancers.

How long will my sale take?

We are frequently asked how long it will take for the sale to complete. The average timeframe to sell a property is between 4-12 weeks from the acceptance of an offer to completion of the sale. The transaction length can vary from this though depending on issues outside of your control, particularly when the property is restrained by the Prosecution.  Our POCA department, led by Lauren Bowkett, can assist you if the time runs over to obtain an extension of time to pay by a maximum of six months if necessary.  If you do not apply for the extension you may get a custodial sentence.

Varying the Restraint Order

If you are going to sell your property to pay your confiscation order you need POCA solicitors to first vary the Restraint Order, if one has been served on you.  The Restraint Order is an order from the Court stopping you from disposing of your assets and to protect them whilst the proceedings against you are ongoing.

Once you are ready to sell your property to pay your confiscation order and you have found a buyer our POCA team can apply to vary your Restraint Order to allow your property to be sold with consent from the Court.  If you do not instruct POCA solicitors to do this, you are in breach of the Restraint Order and there will be consequences.

Restrictions on title

If the balance of the proceeds of the sale (after the mortgage is paid off) is to be used to pay a confiscation order, then this is usually noted on the title deeds. A restriction is placed on the Title deeds to the property at the time the seller’s assets are restrained by the Prosecution.  If you are in possession of a restraint order and your property is listed on it then it is likely that there will be a restriction on the Title Deeds.  Most conveyancers will not feel comfortable dealing with this type of work as they do not have the experience of dealing with properties restrained under POCA 2002.  But our POCA conveyancing department knows exactly how to help.

The purchaser’s solicitor may request an undertaking from us to remove this restriction to allow the purchase to proceed. However, this is not how the restriction is dealt with.  The removal of such a restriction can only be removed by the Prosecution on an application, made by them, to the Land Registry.  As we are specialists in this area we can assist in ensuring that this application is made by corresponding with the Prosecution in respect of the sale. We will make arrangements with them to pay the proceeds of sale towards your confiscation order, which allows the restriction to be removed and the sale completed.

Redemption Statements

The restriction placed on the title by the Prosecution can also lead to difficulties obtaining redemption statements from mortgage providers. A redemption statement is a document provided by the mortgage provider that confirms the exact amount, including any applicable fees and interest due, to fully repay your mortgage on that date.

It may seem strange that a mortgage provider would refuse to provide a redemption statement for the sale however, it is not uncommon.

If such a situation does arise then delays can occur. Mortgage providers timeframes for dealing with queries are generally a lot longer than conveyancers. Substantial delays, in some cases over a month, can arise despite them having no basis for refusing to provide a final statement.  It is therefore extremely important that you have POCA solicitors and a POCA conveyancing solicitor instructed who have the knowledge, experience and expertise to ensure the smoothest and shortest sale of your property.

Be prepared for delays

Regardless of the purpose of the conveyance, delays are inevitable, and you need to recognise this from the outset particularly if the property forms part of POCA proceedings.

The above examples are just a couple of the many ways that a conveyance can be delayed beyond the average 4-12 weeks.  Each sale is different and there is no definitive timescale that can be given for the completion of a property sale.  However what we do know from our experience is that delays can arise on properties which form part of confiscation proceedings by no fault of your own and that is why it is so important to get the right solicitors to help you to make sure you do not get a custodial sentence for not paying your confiscation order in time.

Get the help you need

To speak to someone who can help get in touch today:

The above information relates to freehold property only with separate rules relating to leasehold title which will be considered at a later date.

Information correct as of May 2019

Robert Blair – Cohen Cramer Solicitors