The Proceeds of Crime Act (POCA) 2002 was introduced to criminalise the use of any property, such as money, shares and goods, that has been obtained through criminal conduct.
Proceeds of Crime Explained
‘Proceeds of Crime’ refers to money or assets gained as a result of, or intended to be used for, criminal activity. Examples include tax evasion, bribery and any benefits received as a direct result of a business failing to comply with UK law.
Authorities such as the Criminal Prosecution Service (CPS) or Serious Fraud Office (SFO) have the power to confiscate these assets under the Proceeds of Crime Act.
How does the Proceeds of Crime Act work?
The main aspects of POCA are freezing and confiscating assets. Law enforcement agencies have to apply to court to make a restraint, confiscation or recovery order.
Enforcement proceedings can be brought about if the investigating authorities suspect financial gain as a result of criminal activity.
There are several orders that can be applied under a POCA. These include:
Restraint and freezing orders
These are designed to prevent people from accessing and using their assets while the investigation or criminal proceedings are underway.
These orders can be crippling for businesses and individuals – especially if they are unable to access money to pay for legal defence.
However, applications can be made to release funds to ensure a business or household is kept running.
A restraint order can last for 60 days, by which time the authorities must decide whether to end the investigation or issue another order.
A confiscation order is made after conviction of a criminal offence to deprive the defendant of the benefit that they have obtained from crime.
The prosecution has to prove beyond reasonable doubt that the assets in question have been obtained as a result of criminal activity. It also has to justify the ‘recoverable amount’ of property according to the ‘benefit from the crime’.
Once a confiscation order has been made, defendants have a set time frame in which to pay – usually a maximum of six months after an order has been made. If the order is not paid voluntarily, then either the magistrates’ court enforces the order as if it were a fine or the prosecutor may apply to the High Court to appoint a receiver. Failure to make the payment on time can lead to a default prison sentence.
Defending confiscation enforcement proceedings is very complex as it can often link to other areas of legislation. Cases can involve people, assets or companies across the UK and other jurisdictions.
Civil recovery order (CRO)
A Civil Recovery Order is also known as a Part 5 Recovery Order.
Recovery Orders are civil law claims, which enable investigating authorities to recover the proceeds of a crime without the need for a criminal conviction.
If an Unexplained Wealth Order [Link to UWO page] has been issued, enforcement authorities can apply through the civil courts for a Part 5 Recovery Order.
The court simply has to be satisfied ‘on the balance of probabilities’ that the asset being investigated under POCA is, or represents, the proceeds of unlawful conduct.
The burden is on the subject to prove that their assets were obtained legally. If a person served with a UWO does not provide an explanation for the source of their wealth – the property will be presumed to be “recoverable property.”
The proceedings focus on the property; this means that even where a person is innocent of any wrongdoing, they can still be deprived of the property that they hold.
If a freezing or restraint order has already been given, the authorities have 60 days in which to decide whether to issue a Recovery Order.
What Should I do if I’ve Been Issued with a POCA order?
You should get legal advice as soon as you have been issued with any POCA order. A financial crime specialist can help with the following:
- Applying for the release of restrained funds to maintain income
- Repatriation of assets if your money is currently overseas
- Payment of specific debts
- Preparing statements required by the court
- Applying for variation of restraint or freezing orders
- Advice on corporate recovery or liquidation
- Disputing the ‘recoverable amounts’ in confiscation or recovery orders
- Representation in POCA court hearings
- Disputing statutory assumptions based on criminal lifestyle
Early advice is absolutely vital in all cases in which an order under POCA has been issued. In many cases, such as restraint and freezing orders or cash seizure (for example in a raid), Patrick Cannon can make a claim to release your money while the investigation or prosecution takes place.
Most cases brought about under the POCA 2002 involve complex and far-reaching investigations, so having legal advice and representation is extremely important.
Frequently Asked Questions
Any assets and cash resulting from a criminal lifestyle and obtained through criminal conduct.
A person commits the arranging offence if they enter into or become concerned in an arrangement which they know or suspect facilitates the acquisition, retention, use or control of criminal property by or on behalf of another person. The offence is triable either way in the Magistrates’ Court or the Crown Court.
Yes, a gift of the proceeds of crime retains its character and the authorities can trace into the gift which is known as a tainted gift and can be seized.
If a defendant fails to pay the confiscation order, the Magistrates’ Court will consider why this has happened and whether to order them to serve the default sentence given at the time the order was made. An Enforcement Receiver will also be given the power to sell the assets of the defendant and pay the order.
The police are able to claim some of the confiscated money and assets back to reinvest into policing, through an incentive scheme. For confiscations of assets rather than cash, the Home Office gets half and the other half is spilt equally between the police, the Crown Prosecution Service, and the courts.
Yes you may appeal against the making or the amount of the order with the leave of the Court of Appeal
Patrick Cannon has worked as a solicitor and barrister for over 35 years, with a background in tax litigation and financial crime including tax judicial reviews against HMRC search and seizure warrants, Code of Practice 9 tax investigations and VAT carousel fraud.
Alongside this, Patrick Cannon can advise and defend individuals on:
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