Confiscation and restraint

In a recent series of illicit events, West Midlands Police recovered almost £2 million in “dirty money” from criminals. Around 96 offenders between April and December 2016 were targeted, ranging from drug smugglers to fraudsters to thieves.

The cash was able to be seized under the Proceeds of Crime Act (POCA) 2002, which gives authorities the right to confiscate and/or suspend assets believed to be a product of criminal activity.

In this article, we’ll explain how the police are able to use POCA to fight crime, and what that might mean for you.

Crime doesn’t pay

The aim of POCA is to deny criminals the use of their assets, recover the proceeds of crime, and disrupt and deter criminality, underlining the age-old adage, “crime doesn’t pay”.

While confiscation occurs only after a conviction has taken place, there are means to recover assets before conviction, namely civil recovery, cash seizure and taxation powers. Even if a criminal prosecution is not possible, the Crown Prosecution Service may decide to take civil action to recover money that it believes comes from criminal activity.

The Act also allows for a number of investigative powers. Authorities are likely to issue a restraint order – freezing a suspect’s bank accounts and other assets that may later be confiscated – while their finances are looked into. This order can stretch to any known number of people directly linked to the suspect, even if they did not commit a crime.

And the Home Office is very serious about using such powers. In 2013/14, more than £746 million of criminal assets were confiscated, while more than £2.5 billion were frozen.

POCA also gives the courts search and seizure powers in financial investigations and the power to apply for production and disclosure orders, requiring people to answer questions, provide information or produce documents.

The Order

The Court will work to take every penny known to have been criminally obtained. This is known as the benefit figure – the amount benefited from the crime by the suspect.

A notable problem is that the benefit figure can sometimes far surpass the realisable figure – the value of assets you physically own or have access to. The Court will assume you have hidden assets, and you will need to offer a strong defence to demonstrate otherwise.

Likewise, the Court will always issue the Order – the amount to which will be confiscated – to the sum of the benefit figure, unless you have successfully defended your case.

The Order also carries a period of imprisonment in the event that a confiscated sum is not paid within an allotted time frame. The rough term is as follows:

Order

Sentence

An amount not exceeding £10,000

6 months

More than £10,000 but no more than £500,000

5 years

More than £500,000 but no more than £1 million

7 years

More than £1 million

14 years

Can anything be done?

By combining our legal expertise and experience with the advice of specialist accountants, Salhan & Company Solicitors have successfully defended many POCA actions.

We can assist with applications to vary restraint orders, so that someone can access more of their assets and challenge prosecution evidence of a criminal lifestyle, which is required for a confiscation order, or seek to disprove arguments concerning the level of assets or the existence of hidden assets.

For more information, contact us today.