Tag Archives: POCA

£700K reduction in the benefit figure for confiscation client

Confiscation law specialist Julia Haywood recently took over a client’s case post conviction.  Our client was involved in confiscation proceedings involving a benefit figure of over a million pounds.  He was not happy with the advice and representation he was receiving once the main part of the case was over.

POCA benefit figure confiscation proceedingsIt is often our experience that client’s may feel that their interests are not being properly protected after sentence, despite the fact that it may be that the outcome of any confiscation proceedings could be a more substantial punishment than the sentence for the offence.

In this case, our client had been referred on to this firm on recommendation from an existing client, the client citing out ‘Good reputation on Class A cases’ as one of the reasons why he wished to transfer to this firm.

The preparation of such cases are often complicated where our client is serving a sentence of imprisonment.  For example, here. he was initially at HMP Wandsworth but later transferred to HMP Highpoint North.

The application to transfer legal aid to us was not resisted, and the first task Julia undertook was to seek to amend the timetable to permit proper preparation of our client’s case.

Background to the confiscation proceedings

The background to the case was a conviction for conspiracy to supply drugs of both Class A and Class B.   There had been covert surveillance at agricultural premises, and following a raid cocaine was found that was initially valued at £1.5 million.  The cocaine had a total weight of 22 kg, packaged in individual blocks.  Our client was one of four co-accused.  At the point that we took over conduct of the case, one of the co-accused had been subject to a confiscation order with a benefit figure specified of £1 060 280.

POCA confiscation proceedings benefit figureUnfortunately, our client was very unclear as to what he had pleaded guilty to and on what basis.  It appears that he had followed advice that inevitably resulted in a significant loss of credit for his plea.  He received advice in writing that he had pleaded guilty to possession with intent to supply a smaller amount of Class A drug when he had in fact pleaded to the conspiracy on a full facts basis.  His case had been listed for a Newton Hearing, although this was later abandoned for reasons that were not immediately apparent.  Our client was serving a sentence of 11 years.

In order to ensure that the case was fully  prepared Julia visited her client six times prior to the final confiscation hearing.  Although some work had been undertaken on his behalf, in effect she had to start the preparation of his case from the very beginning.  Assertions had been made in documents submitted on our client’s behalf that had no legal basis.

Significant reduction of the benefit figure

The prosecution were claiming that our client’s benefit from his offending was £1.1m.   Once Julia had taken the opportunity to review all of the evidence in the case she was able to engage in negotiation.  Agreement was reached over a much reduced figure of £396K.

This reduction of £700K was likely to be extremely significant for our client over the longer term.  He did not have assets sufficient to pay the benefit figure in full.  As a result it would be open to the prosecution to bring the matter back to court each time it was discovered he had assets to direct that more money be directed to paying off the benefit figure.  As a result it was in his interests for the benefit figure to be as small as possible.

Extensive realisable assets

The position in relation to our clients realisable assets was also complex.  He had been self-employed.  Preparation of such a case where a person is in prison is always difficult.  This was particularly true as our client had been remanded from the time of charge.

benefit figure realisable assets POCAHe had significant assets that would be counted in the calculation of the ‘available amount’.  He owned his own home and three vehicles as well as a large amount of specialist camera equipment.  His partner, however, had left him following his arrest and taken all of his assets not seized by the police.

The prosecution was contending that these were tainted gifts  although our client would argue otherwise.  Julia was able to locate the ex-partner who attended court at the final hearing to confess what she had done!

There were further complicating issues involving substantial loans of many thousands of pounds to our client by his father.  Julia was able to put together a comprehensive history of where her client’s  money had come from.  Understandably this was not an easy task.

The value of the Realisable assets as an ‘available amount’ was finally agreed at £136K.  Julia identified a large sum of cash that had been seized by the police.  This had not been counted in the initial prosecution calculation.

Although in this case, our client lost what he had, there was a reasonable opportunity to rebuild his fortunes upon his release from prison.

Instruct an expert on confiscation proceedings

The outcome of any case is important.  In cases involving confiscation proceedings there will not only be a sentence to serve, but the potential for the additional punishment of loss of assets.

If you wish to discuss any aspect of your case then please contact Nottingham confiscation solicitor Julia Haywood on 0115 9599550.  Alternatively, use the contact form below.


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.

If you need advice in relation to confiscation of other proceedings please contact your nearest office or email us.

Derby Crown Court