Confiscation Proceedings in a Nutshell
- September 7, 2020
- Mike Massen
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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.
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.
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