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What are Confiscation Proceedings under the Proceeds of Crime Act?

At Elliot Mather we understand that matters under the Proceeds of Crime Act following your conviction can seem rather confusing and very frustrating.

Our dedicated Criminal Defence team offer friendly and professional advice with continuity of representation throughout your case.

What Are Proceeds of Crime Proceedings?

Following a conviction or a guilty plea for certain types of offences the prosecution can apply for a confiscation order.

A confiscation order is governed by an Act of Parliament called the Proceeds of Crime Act 2002, known as POCA.

This Act sets out the way that such an order is to be made and what is to be taken into account. The proceedings are separate from the main criminal matter and have a procedure which is set out in the Act.

A confiscation order sets out two figures, namely,

  • the benefit figure and
  • realisable amount.

Benefit figure

The benefit figure is calculated by looking at the “specific criminal conduct” and in some circumstances the “general criminal conduct”.

The nature of the matter a person has been convicted of may allow the court to look at what is called “general criminal conduct” or a “criminal lifestyle”.

A finding of a “criminal lifestyle” will allow the prosecution to investigate someone’s financial dealings over six years or more and ask for an explanation about money received and items acquired.

Realisable Amount

Once this benefit figure is calculated a defendant has to show what his realisable amount is.

The realisable amount is made up of the property that he currently holds, that is property of any kind, be that land, houses, money in the bank, paintings, or anything else.

It may be that another, innocent third party, has a claim on some or all of the property.

The prosecution may say there are “hidden assets”, money or things of value that are in other people’s names or alternatively held in undisclosed accounts and are available to pay toward any eventual order made.

How Much Will Have To Be Paid?

Once the benefit figure and the realisable amount are calculated, if the benefit figure is less than the realisable amount then the defendant pays the whole of the benefit figure.

If, as occurs in most cases, the benefit figure is significantly larger than the amount that the defendant can pay the court will make an order what the benefit figure is and then state the amount that can be paid within a certain time [up to three months].

     

What Happens If the Defendant Does Not Pay?

 

When the court sets a realisable amount to be paid it will also set an alternative period in custody.

This term is served consecutively to the original sentence and is activated in the Magistrates court.

If someone serves time for not paying a confiscation order, it does not wipe the debt owed.

Interest will accrue on any unpaid money after the time limit runs out. This is currently calculated at 8% per annum on a daily basis.

 

A Future Request for an Increase in the Available Amount

Should the benefit figure be greater than the amount you are ordered to pay, then the prosecution can, anytime in the future, make an application to increase the amount you have to pay. 

There has to be some reason for the application and it is usually based upon an increase in the value of an asset in your name or that you subsequently acquire assets of value.

If, for example, a house where an interest was established at the time the order is not sold to pay off what is owed increases in value then the prosecution will, sometime in the future, apply to the court for the increase in the equity in the property.

Furthermore, if a defendant acquires an interest in property sometime in the future, for example buy a house or inherit one, the prosecution can apply to have a defendant’s interest in the property paid over to them.  

This application by the prosecution can be made at any time in the future.

What Do We Do?

In the original Poca application we aim to help reduce both the benefit figure and amount to be paid.

We do this by taking instructions, preparing detailed documents on the client’s behalf and have access to a wide range of experts as well as specialist counsel.

We are happy to represent third party interests within the original Poca proceedings.

Following the making of a Poca we can advise on both any future applications made by the prosecution and enforcement proceedings before the magistrates’ courts.  

Location 

Our Solicitors are able to provide expert advice across the country with a network of offices based in: Chesterfield, Nottingham, Mansfield and Derby.

How to get in contact 

Our team are on hand to help you and can assist wherever you are based. Please call us for a no-obligation, initial discussion on 0330 333 2613 or email enquiries@elliotmather.co.uk and we will call or email you back.

How to make contact out of hours 

We have emergency contact numbers for individuals who require police station representation outside of our office hours.

If you require assistance from one of our criminal defence solicitors when out of our normal office hours, it is vital that you call us on:

  • Chesterfield: 07717802850
  • Derby: 07776240152
  • Mansfield: 07741592301
  • Nottinghamshire: 07741592301

No photo - staffMember

Simon Walton

Solicitor

Simon joined Elliot Mather as a Solicitor in our criminal department in April 2021 and is predominantly based at our Mansfield office.

He has over 30 years’ experience as a qualified solicitor, and is recognised as a Grade A Supervising Solicitor for Financial Crime by the Legal Aid Agency (LAA) for Very High Cost Cases (VHCC).

He predominately works on a number of high profile and complex criminal cases, but has experience representing individuals across a range of criminal and regulatory matters, including:-  

  • Fraud and Money Laundering.
  • Confiscation Cases.
  • Serious crimes, including murder and manslaughter.
  • Motoring Matters
  • Professional Disciplinary Matters

Simon appreciates that coming into conflict with the criminal justice system is a distressing time for anyone as well as those closest to them. It is because of this that he endeavours to provide expert and friendly advice at all stages of a client’s matter.

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