Proceeds of Crime Act
The purpose of confiscation proceedings is to deprive a defendant of the financial benefit obtained through their criminal conduct. Confiscation proceedings normally occur after a conviction has taken place.
The Proceeds of Crime Act 2002 (“PoCA”) sets out the law in relation to the confiscation proceedings and is an exceptionally draconian piece of legislation. It is a very complex and technical area of law which places the burden on a defendant to establish the legitimacy of their assets in response to the prosecution’s assertions and statutory assumptions.
Confiscation Orders can have a devastating impact on a defendant as well as their families. It can result in the loss of the family home, loss of savings and if not paid the loss of liberty for a defendant. It is therefore very important to instruct a solicitor who is a specialist in this area and able to apply their expertise to the case.
If a Confiscation Order is not paid then Enforcement proceedings will be commenced in the magistrates’ court. The defendant will be at risk of the default sentence being imposed by the magistrates’ court for non-payment of the Order as well as interest accruing on the outstanding debt at a rate of 8%.
Our specialist solicitors will be able to advise you on these proceedings even when we were not the originally instructed firm.
If you are requested to attend the magistrates’ court for enforcement of the Confiscation Order then you can apply for legal aid (a Representation Order). The application will be granted if the default sentence has not been served as the defendant’s liberty remains at risk. If the default sentence has been served then legal aid will not be available for the enforcement proceedings.
Variation to Confiscation Orders / Certificates of Inadequacy
We are experienced in advising on applications to vary the Confiscation Order under section 23 PoCA or applications for a Certificate of Inadequacy (for Confiscation Orders pre 2002) with high levels of success.
A Restraint Order can be made under the Proceeds of Crime Act 2002 and can be applied for at any stage after a criminal investigation has been launched. An individual does not have to be arrested or charged with an offence before a Restraint Order can be made by the Crown Court.
A Restraint Order is normally applied for by the investigating or prosecuting authority which can affect not only the suspect / defendant but third parties as well as companies. Such orders are wide ranging and prevents the named people from dealing with their which could have been legitimately acquired.
The individual will be permitted to access a sum of money each which to meet their basic living expenses which is normally £250.00 per week.
A Restraint Order can be challenged or varied depending on the individual case and so it is vital that legal advice is sought as soon as a Restraint Order has been served.
Magistrates’ Cash Forfeiture (Cash seizure) Proceedings
Under the Proceeds of Crime Act 2002, the police can seize case in excess of £1,000.00 if they suspect it was obtained through criminal conduct or intended for future criminal activity.
The police have to apply to a Magistrates’ Court to detain the cash within 48 hours. The court can grant an order for a period of 6 months to carry out their investigations. The legislation allows the police to reapply for the cash to be detained for up to 2 years or at any time apply for the cash to be permanently deprived from the individual.
An individual who has had cash seized by the Police should contact our specialist solicitors who can advise them.
Legal aid may be available to assist in any form of proceedings under the Proceeds of Crime Act 2002.
For more information please visit our Fees & Funding page.
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