The Proceeds of Crime Act 2002 (POCA) compels a Crown Court to consider whether a convicted individual has benefited financially from criminal conduct and whether and to what extent an order should be made requiring the “Confiscation” or “repayment” of that benefit.
Confiscation proceedings begin following the conviction (for an offence committed after the 23rd March 2003), where the prosecution case is that the Criminal conduct enabled the defendant to obtain a valuable benefit, known as the proceeds of Crime.
Where confiscation proceedings are commenced, the prosecution will seek to identify:
what the benefit is,
quantify it in money terms and
whether and to what extent the defendant has the means to pay
Confiscation proceedings will typically involve complex calculations and a thorough forensic analysis of the facts and calculations is a basic requirement. Where there can be no agreed settlement by negotiation with the prosecution, the court's role will be to determine the issues of benefit and the ability to pay.
The hearing, although in the Crown Court, will be presided over and decided by a Judge alone. There is no jury determination in confiscation proceedings, despite the fact that the hearing of the matter will take the format of a trial.
The standard of proof
Where there is a dispute and the matter proceeds to a hearing the Court must determine the issue. Unlike the general rule in Criminal Proceedings, the Court will decide whether the prosecution's case is, on a balance of probabilities, true.
If the court determines in favour of the prosecution the Judge will make a confiscation order in a specified amount. The requirement will be for the defendant to pay the specified amount (usually within six months) or face a term of imprisonment.
Can we help?
We have a team who are highly experienced in representing those facing confiscation proceedings. We are able to advise on the confiscation elements of your case, even where you may have been represented by others during the substantive criminal proceedings. We will conduct a thorough analysis with a view to undermining the prosecution's contentions and advise you on defences and the strengths of those defences.
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