Confiscation Proceedings (POCA)
The Proceeds of Crime Act 2003 (POCA) was introduced to ensure that convicted criminals were unable to have the benefit of their criminal activity after the conclusion of their cases through confiscation proceedings.
At the conclusion of certain types of proceedings, particularly drug trafficking offences and significant dishonesty offences, the prosecution are able to seek to recover what it alleges is the benefit from the criminal conduct.
Dependant upon the offence, the Crown are able to seek an explanation from the convicted person for all income, expenditure and assets acquired during a 6 year period prior to the commission of the offence. Absent a reasonable explanation the court is able to treat such items as the fruits of criminal conduct. The situation can be made even more complicated where the Crown allege that a person has hidden assets or has made inappropriate gifts to others.
Once a figure for this ‘benefit’ has been decided upon the court will then decide whether a person has sufficient assets to use to discharge this benefit figure. This can involve the sale of property, cars or other assets by a person who may be serving a lengthy prison sentence.
A period of imprisonment is fixed if the money is not paid. If the assets are not realised and the debt paid within 3 months then there is a risk that the period in default will be activated and the debt remain thereafter.
Understandably these are significant worries for our clients who face confiscation proceedings under POCA. We take great care in assisting our clients to make sure they comply with all of their obligations under this extremely complicated and potentially draconian legislation in an attempt to limit their liability and give them an opportunity to discharge any debt and rebuild their circumstances post-conviction.
Serena Simpson, from our Chesterfield office, has recently assisted as litigator in the case of a first time offender who pleaded guilty to supplying drugs. The supply was only to a close circle of friends in order to subsidise his own drug use.
The Prosecution decided to proceed under the Proceeds of Crime Act despite the fact he lived a lifestyle far removed from any drug dealing stereotype.
Serena set out with the client to undertake the potentially mammoth task of demonstrating how 6 years of income, assets and expenditure had been legally funded.
The client was helped to:
- Demonstrate lawful income he received as an employee
- Confirming what bank accounts he had and explain the payments in and out
- Catalogue assets that would be relevant to the proceedings
Serena drafted a Statement of Assets and Means which was served on the Crown Prosecution Service. The through preparation on behalf of the client led the Crown to decide that it was not worth pursuing the client under confiscation and the proceedings were discontinued.
Not only did the client have nothing to pay under confiscation proceedings, he also had the benefit of legal aid which means that our advice and representation was free of charge to him.