This is a specialised area of the law. For one reason or another, a number of experienced criminal practitioners shy away from Proceeds of Crime cases. This is no such Firm. What happens at the Police Station at the beginning of the investigation can have a significant effect on orders sought by Financial Investigators at the end of the case.
Anne Toms of this Firm has particular expertise in this area and has prepared cases since the inception of the Proceeds of Crime Act 2002, a particularly draconian piece of legislation which is often misunderstood by clients. This is so as the onus is frequently upon the defence to prove their case rather than the Prosecution being forced to prove any assertions beyond reasonable doubt.
Both Partners in the business have considerable experience of dealing with such matters and Mark Shepherd is regularly instructed to present cases in the Crown Court.
Christopher Toms has frequently appeared for Enforcement hearings in Liverpool where all North West enforcement hearings take place.
Restraint orders
Restraint Orders are obtained by prosecutors in fraud and other criminal investigations, often at a very early stage of an investigation without notice to a suspect, to prevent them from disposing of their assets.
The Restraint Order bites immediately as bank accounts and other assets can be frozen, which wholly restricts a person’s ability to handle their affairs during the course of a criminal investigation and/or proceedings. This will generally only leave a very small amount of money for that person to live on, which can significantly affect relatives and dependants.
Disposal of any assets that are subject to a Restraint Order can lead to Contempt of Court proceedings being brought against an individual.
Confiscation order
The Proceeds of Crime Act 2002 requires a Court to hear confiscation proceedings upon application of the Prosecution following a conviction for certain types of crime. The purpose of these proceedings is to confiscate from the Defendant the financial benefit from the offence(s) committed and the financial benefit derived from leading a “criminal lifestyle”. This is a legal concept, which is commonly misunderstood.
The Court must decide whether there has been benefit from criminal conduct and if so what the amount of that benefit is. In practice, this is hotly contested and requires a significant amount of liaison between defence solicitors and financial investigators. The law requires a number of assumptions to be made in such cases and these can often either create a risk of serious injustice or can be proved to be incorrect.
The burden of establishing the value of any realisable assets falls upon the Defendant. However, the Financial Investigators will have carried out their own due diligence and will challenge any assertions that contradict what they have uncovered. What many Defendants sadly fail to realise is that all property(even if they can prove that it was legitimately obtained) is taken into account when the Court determines what the amount of any confiscation order should be. This can affect the rights of family members and partners who may have an interest in the property. If this is the case, they should seek independent legal advice.
When the confiscation order is made, the Court must set a term of imprisonment in default. The maximum permitted time for payment has been reduced to 3 months, which increases the pressure on the Defendant.
In many cases, the benefit figure exceeds the available amount or realisable assets. In such cases, the residual benefit figure remains outstanding. The Crown Prosecution Service can (and does) bring the matter back to Court to have the available amount reassessed to take into account new assets obtained or assets that were originally hidden from them.
Extension of time to pay
Whilst a Defendant often has every intention of making payment within the allotted timeframe, it can be very difficult to realise money if it is tied up in investments or property. We have obtained extensions of time for clients to discharge their confiscation order frequently.
It is very important to realise that when asking for an extension of time, we will need to satisfy the Court and/or the confiscation unit that the Defendant has been making genuine attempts to realise their assets.
What if I can’t pay?
This is not an uncommon situation. The amount available for confiscation is based upon a paper valuation of assets at a given time. It may be that a Defendant has been unable to sell their family home or the value any prospective purchasers are willing to pay is less than the value obtained for the confiscation proceedings. To sell at an undervalue purely to deprive the prosecution of the value of the asset will inevitably lead to repercussions but it may be that the Financial Investigation Unit can be persuaded to accept that this is the best price for the property.
Alternatively, it may be possible to certify that the money the Defendant has is inadequate to discharge the order and to apply to the Court to vary the order accordingly. It will be very important to provide written evidence of the efforts that have been made to satisfy the order.
It should be said that if a Defendant did have the money to discharge the order but then spent it, a custodial sentence in default looms. The amount would remain payable, with interest, upon release.
Enforcement Proceedings
If somebody subject to a Confiscation Order has not discharged the order in time, they face the very real prospect of enforcement proceedings.
Enforcement Proceedings begin with an unwanted trip to Liverpool to appear before the Regional Enforcement Court. At that hearing, the Court will conduct a simple exercise in establishing what proportion of the confiscation order remains outstanding and will then send somebody to prison to serve their default terms. Prison sentences for defaulters have been recently increased and Courts have a wider discretion to impose longer sentences than it would have been permitted to impose previously.
This does not expunge the remaining sum; rather, it adds interest to it! The order will remain payable. The Crown Prosecution Service may then consider civil enforcement methods and make applications to the High Court to obtain charging orders or orders for sale for certain assets.
If you face enforcement proceedings, call us immediately. There really is no time to lose and we may well be able to obtain funding to represent you. We can also make representations to the Court and the Regional Confiscation Unit before the hearing which could avoid it altogether.