Q1 My case is over but I have been told there is a POCA. What does this mean?
What most people don’t realise is that even after conviction, sentencing and serving time in prison you may face confiscation proceedings under POCA 2002. This is if you are found to have financially gained from your offence. The Prosecution can seek to recover what you have gained from your criminality and will assess what you have gained from the offence and seek to recover this from any assets that you have.
Q2 I have been ordered to pay a confiscation order. What do I do if I don’t have the funds to pay it?
A value has to be placed on your assets in order for the Court to quantify your available amount. However sometimes when assets are sold, they do not meet the value that was placed on them. If you think that your assets have been valued incorrectly and if you are able to prove that the value of your assets is inadequate to meet the Order you may be able to apply for a variation to reduce the Confiscation Order under Section 23 POCA 2002.
Q3 I have been told that I have hidden assets. What does this mean?
The Crown believes you have assets other than those you have already told them about. The burden will then be on you to prove otherwise. In these circumstances, unless you can prove that you have not hidden your assets, the Crown is entitled to say that this is an asset. This can result in an inflated assessment of your available amount and a confiscation order that you are unable to pay. It is therefore crucial that you seek legal advice, as an unpaid confiscation order, is likely to result in you receiving a further sentence for non-payment.
Q4 I have been told I have property which belongs to me. But it doesn’t. What can I do?
Depending on what stage of your proceedings you are at, the person who owns the property may be able to prepare a third-party interest application under Section 10A POCA 2002. If the interested party does not do this, there is a very serious risk that the property will be confiscated.
It is advisable that the interested party seeks legal representation so that an assessment of their interest can be conducted and an application made to protect their financial interest in the property. This can be funded on a private basis or through your legal aid if there is no conflict.
Q5 I paid my confiscation order and now the Police have asked me to pay more money. What do I do?
Unless the value of the confiscation order that you have paid was equal to the value that you obtained from your offence, the police are entitled to ask the Court for an upward variation of the Confiscation Order under Section 22 POCA 2002.
There is no time limit on the Police’s ability to do this and it usually happens when the police identify further assets belonging to you. The application can be made many times over by the Police until the whole benefit amount has been paid.
Whilst the police are entitled to seek recovery of further funds until the value of the benefit is repaid, the upward variation will only be granted if the Court is satisfied that you have additional available assets and it would be ‘just’ to do so.
Q6 What is ‘criminal lifestyle’?
Once you have been convicted and you face confiscation proceedings it will be determined whether or not you have a ‘criminal lifestyle’. This means that you have committed a specified offence under the POCA 2002, your offence concerns a course of criminal activity in which you financially benefitted or the offence was committed over a period of at least 6 months. If you have a criminal lifestyle the Crown will be able to look back through your previous six years of financial history and see if there is anything else which they think may be linked to criminality.
Q7 What is ‘benefit and available amount’?
The benefit amount is what you are deemed to have profited from crime and this figure will stay with you for life until it is paid in full. The available amount is what it is determined you have available to you in terms of assets to then pay towards this figure. If there is a disparity between the benefit figure and the available amount, the Prosecution may come back to you at a later date to vary the confiscation order upwards if you come into further assets or money to pay towards the benefit figure.
Q8 I have property abroad how I do get it back for POCA?
Realising property overseas is never easy and as it is your responsibility to pay the order, you are unlikely to receive any assistance from the Prosecution. The process differs depending on where the assets are held and therefore it is vital that you instruct expert POCA lawyers to assist you. This is particularly important given that any delay is likely to result in interest accruing on the amount that you owe and if you do not pay the Confiscation Order you can serve further time in prison.
Q9 How long do I have to pay my confiscation order?
The time that you will be allowed to pay the Confiscation Order is determined by the Court and is discretionary. If you have assets to sell you will usually be allowed a maximum of 3 months to pay. If after this time you have been unable to pay the Order, you can apply for an extension of time to pay under Section 11 POCA 2002. This will only be granted where the Court is satisfied that you will be able to pay the remaining amount by the end of the period. As the extension is discretionary, it is unlikely that you will be granted an extension if you have not made any attempt to realise the assets that have been identified.
Q10 My bank account is restrained, am I entitled to Legal aid?
If your bank account has been restrained and you have been charged with an offence you will be entitled to Legal Aid as you do not have access to funds to pay for your representation. Depending on your means you may have to pay a contribution to the Legal Aid Agency at a later date towards your fees.
If you have any questions concerning a Proceeds of Crime Act matter then get in touch with us today. get the advice you need when you need it most.
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