Proceeds of Crime Act (POCA)

The authorities have various and far reaching powers under the Proceeds of Crime Act 2002. These powers are usually draconian and can leave an individual feeling helpless and vulnerable.

The Proceeds of Crime Act enables the Police and other prosecuting authorities to commence proceedings following a conviction for any offence where it is suspected that a financial benefit has been obtained by the defendant during the commission of an offence. The legislation also gives authorities the power to bring proceedings even where an individual has not been charged with the commission of an offence.

The investigating authorities are now provided with extensive powers to investigate the assets of those under investigation, and to freeze and even to confiscate those assets both in the civil and criminal courts. We know just how devastating the effect of these orders can be, and the paramount importance of proper advice and tactics from the very outset.

The different types of proceedings that you may face are as follows:

• Post-conviction Confiscation Proceedings
• Cash seizure and forfeiture
• Civil asset recovery
• Freezing of assets at the very start of a criminal investigation (even before any criminal charges are brought). These applications are made by the prosecution without notice to the individual.
• Freezing of assets of an individual and/or connected third parties and/or companies. This can have an international application where relevant.
• Court ordered requests for the immediate disclosure of assets both in the UK and abroad
• Court ordered statements of truth requesting detailed information of all assets and transfers over many years
• Repatriation of assets abroad e.g. return of assets to the UK
• Appointment of Management Receivers to trace and recover assets
• Production Orders to obtain personal records
• Contempt proceedings for alleged non-cooperation
• Orders which seek to limit living expenses and business expenditure.

Confiscation

Having obtained a conviction for an offence which triggers POCA, the prosecuting authorities then simply need to determine how much a defendant should pay under a confiscation order. This calculation is done by determining the benefit of the criminal conduct and importantly the available amount.

Complications occur when the benefit amount is greater than the available amount. In these circumstances the courts may take what is feasibly available at the time and then will apply to re-open the case, until the benefit amount is fully repaid.

Where people are often mistaken is when they believe that any legitimate assets cannot form part of the available amount. This is not the case as the prosecuting authorities can seek to make a recovery from all available assets irrespective of where they originated from.

Matters can become very complicated once the prosecuting authority start making reference to hidden assets. This is when you need an experienced team of criminal solicitors to assist you to achieve the best possible outcome.

We have assisted many high profile clients who were facing confiscation orders running into millions of pounds by doing the following:

• Successfully arguing that confiscation proceedings should not be initiated against our client
• Significantly reducing the Benefit Figures and Available Amounts that are argued by the prosecution
• Challenging Assumptions: including ‘criminal lifestyle’ and gifts (tainted, hidden, undervalue)
• Successfully overturning Confiscation Orders in the Court of Appeal
• Overturning prosecution applications to invoke criminal lifestyle cases

Enforcement

Once a Confiscation Order has been made at the Crown Court the usual order is that it needs to be paid within a set period, this is a maximum of 6 months irrespective whether you are in remanded custody or not. Failure to make payment will usually trigger a sentence to be served for a default period which will be determined at the outset depending on the amount payable.

Our experts have often represented clients during enforcement proceedings at the Magistrates Court and have negotiated extension of time to pay and have also successfully varied the amount to pay despite the Order that was originally granted.

Defending Against Cash Seizure and Forfeiture

If money is deemed to have been acquired suspiciously, the Police have the authority to detain amounts over £1000 whilst they complete investigations. This cash can then be held for a maximum of 48 hours by the police. After this, the police can apply to the Magistrates court, to detain it for a further 90 days, whilst investigations continue.

The order granted by the Magistrates Court is usually a Detention Order, which enables the Police to legitimately hold on to the seized money.

The Court also has the power to grant a Forfeiture Order, which will result in the Police keeping the money unless the individual applies for the release of the cash or contests the application for Forfeiture successfully.

These proceedings can take place without a criminal charge ever being brought against the individual from whom the money was seized.

If you are facing allegations of illegally acquiring money or using money in a criminal manner then you should speak to a solicitor urgently. The team of solicitors here at Avisons will deal with your case professionally, advising and guiding you through the process swiftly in a manner that you will understand. At Avisons solicitors, we take pride in giving the best representation, understanding that everyone has the right to a fair trial and is innocent until proven guilty.

Restraint Orders

A Restraint Order is a court order that gives the prosecuting authority the right and the ability to immediately freeze your bank accounts or assets to prevent the owner or the account holder from dissipating them. The Restraint Order will usually be granted ‘without notice’ so you will only be aware of the order once it has been granted by the Court and served on you.

Once a Restraint Order is granted the same will be served on the bank and you will no longer have access to the bank account and will not be able to withdraw any funds from the account. Assets such as cars and property can also be frozen preventing them from being moved or sold.

Our experienced Solicitors have often successfully challenged the Order and have also successfully obtained the increase in the allowance provided for in the Order itself.

How Can Avisons Solicitors Help?

Irrespective of the type of proceedings that have been commenced against you, we have a specialist who can help.

It is vital, during this process you are correctly represented as there is a risk of considerable periods of imprisonment if you fail to pay the confiscation order that may be ordered against you and or losing the money that has been seized by the Police. Our expert solicitors guide you through the case ensuring that you receive proper advice and tactical guidance.

We have a team of expert POCA solicitors all of whom are experienced in preparing your case and we are often asked to take over cases after people have become disillusioned with the work of their solicitors in this area.

Our solicitors can dispute figures and calculations for you when at times they can be subjective. Also, the crown may allege the defendant has 'hidden assets'. The experience and knowledge of our law team here at Avisons solicitors, help our clients through this process, ensuring the best outcome is achieved.

Therefore if you have been accused of attaining money illegally, and/or using the money for criminal purposes then please do not hesitate to give us a call today to discuss your case.

Our Team of Criminal Solicitors are here to represent you in court and advise you through the entire criminal process and proceedings. We work on every case individually, by finding out all of the facts and any surrounding circumstances and structuring your defence professionally and to the very best of our ability.

We can;

• Represent you In Court
• Advise you through the legal process
• If necessary, we can also prepare your appeal

Having your cash seized by the police can be stressful and worrying for you, your family and all involved. Let Avisons help take that stress and worry away.