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The Proceeds of Crime Act (POCA) 2002 criminalises the use of any property, such as money, shares and goods, that has been obtained through criminal conduct. Examples include tax evasion, bribery and any benefits received as a direct result of a business failing to comply with UK law.

We are specialists in POCA saving our clients over £100 million over the last 12 months alone, and successfully defending post order enforcement proceedings protecting our clients from having default sentences activated or triggered for non-payment of confiscation orders.

This is what some of our clients have said:

“Saving our clients over the last 12 months over a minimum of over £100 million”

“Askews go above and beyond with POCA and also look after post order issues”

“Askews specialise in s.10A, third party issues and have a great succession rate”

“Askews specialise in s.22 matters and have a great succession rate saving our clients a huge amount on monies”

“Askews specialise in s.23 matters and boost an awesome 100% success rate”

 

Askews Legal LLP are specialists in POCA Issues and able to help and assist you in:

  • Providing you with a bespoke defence to confiscation proceedings that you are subject too whether its prosecuted under the Proceeds of Crime Act 2002 or preceding legislation Criminal Justice Act 1988 and Drugs Trafficking Act 1994)
  • Providing a bespoke defence and protecting third party interests in assets such as properties or seized cash subject to Confiscation Proceedings of another person. (Section 10A of the Proceeds of Crime Act 2002)
  • Dealing with all areas of post order confiscation and enforcement in the Magistrates Court and Crown Court
  • Section 22 applications wherein the prosecution seek to make or increase a confiscation order.
  • Section 23 applications wherein the prosecution or defence seek to decrease a confiscation order.
  • Variations and Restraint Orders
  • Cash Forfeiture
  • Account Freezing Orders (AFO)

Our team at Askews Legal LLP have extensive experience in representing clients who are subject to Confiscation Proceedings, we are able to provide a bespoke service for each client tailoring the representation and defence to suit each clients case at all stages of the Confiscation Proceedings.

We accept instructions from clients that are both Legal Aid funded or wishing to instruct us privately in relation to the following areas of confiscation proceedings;

Prior to the making of a confiscation order

We are specialists in preparing our clients cases and tailoring their individual defence to the specifics of their case. This involves preparing our clients defence in a bespoke way prior to the service of the prosecutions section 16 statement and then responding to the prosecutions case in a concise manner that is specifically tailored to each clients case. In taking such an approach our specialist team have achieved exceptional results for our clients.

Our pre order case preparation is broken down as follows;

  • The preparation and drafting of the Section 18 Statement of Assets;
  • Identifying and advising of any potential third party interests who may seek to establish a beneficial interest in an asset that is likely to form part of the forthcoming confiscation proceedings;
  • The reviewing of the prosecutions section 16 statement with our clients whilst obtaining pivotal instructions from them and the collating of evidence to assist us in preparing a concise section 17 response statement rebutting the prosecutions assertions.
  • Spear heading negotiations with the prosecution on Benefit (Particular & General Criminal Conduct) and Available Amount in order to obtain the best possible results for our clients. If agreements are unable to be reached with the prosecution, we are specialists in preparing our clients for final contested hearings and putting our clients defence case before the Crown Court.

Third Party Interests pursuant to Section 10A of the Proceeds of Crime Act 2002

Prior to the introduction of the Serious Crime Act 2015, third party interests had no standing in the Crown Court prior to the making of a confiscation order and all third party interests were declared during the post order proceedings . However, following the introduction of the Serious Crime Act 2015 the act allows the Crown Court Judge upon making a Confiscation Order to also make a determination in respect to any known third party interests such as spouses, other family members and other persons deemed to hold a beneficial interest in such assets.

Our specialist team at Askews Legal LLP regularly accepts instructions from a third party wishing to declare their interest in an asset subject to a confiscation proceedings. We are able to provide representation for third parties wishing to assert their interest within the specific assets whilst advising them on the best and most effective way introduce evidence relating to their claim.

Post Order Confiscation Proceedings

Following the making of a confiscation order, Askews Legal LLP will continue to represent our clients throughout the Post Order stage and assist with the following;

  • Preparing applications for an extension of time to pay pursuant to Section 11 of the Proceeds of Crime Act.
  • Preparing applications to Vary confiscation order pursuant to Section 23 of the Proceeds of Crime Act. For example, seeking a reduction in the available amount following the sale of an asset for a lesser amount than that agreed and the time of making the Confiscation Order.
  • Preparing a bespoke defence to prosecutions applications to reconsider and increase the value of an available amount pursuant to Section 22 of the Proceeds of Crime Act.

Appeals Against Confiscation Orders

At Askews Legal LLP we are renowned for our success in establishing and perfecting grounds of appeal against disproportionate and excessive confiscation order made against defendant’s.

Enforcement of Confiscation Orders

If a client finds themselves in a position that their Confiscation Order is unpaid at the expiry of the Time to Pay period, Askews Legal LLP are specialists in advising and assisting clients with Enforcement Proceedings, we will obtain the required instructions from the client and prepare a bespoke defence for our client before the Magistrates Court in order to achieve adjournment of the proceedings to allow the client additional time to satisfy the outstanding confiscation or putting forward payment proposals to the Court in order to avoid a default sentence being activated.

Restraint Orders

Clients that are subject to Confiscation Proceedings often find that they are subject to a Restraint Order that has been imposed by the prosecution preventing the client from dealing with their assets without prior consent from the Court. Usually during the preparation of the Confiscation Proceedings clients will find themselves requiring a Variation to the Restraint Order imposed. For example, to allow additional funds to made available from a restrained bank account to allow the payment of bills or a mortgage, living allowances and sale of assets. Our specialist team at Askews Legal LLP can advise you accordingly on all variation matters, obtain the required instructions and evidence from you and them prepare the application to vary on your behalf.

Cash Forfeiture and Account Freezing Orders (AFO)

Askews Legal LLP have an exceptional success rate in defending clients who are subject to Cash Forfeiture proceedings, Cash Seizure and Account Freezing Order wherein various prosecuting bodies have imposed restrictions preventing client from dealing with their monies. We are able to take the required instructions from our clients, advise accordingly in respect to the evidence required and prepare concise detailed submissions setting out our clients instructions and relevant evidence. If it is then the case, that the prosecution seek a Final Contested Hearing we will prepare our client accordingly for a final contested hearing and attend the hearing in order to make the required representations to the Magistrates Court.

 

Notable Cases

R v C (Bristol Crown Court) – Benefit figure reduced from £32,000,000.00 to £8,000,000.00 following the service of a detailed section 17 statement setting out legal arguments in respect to proportionality.

R v I (Warwick Crown Court) – Available amount reduced from £18,000.00 to £400.00 following the service of a detailed section 17 statement addressing an apportioned approach to a quantity of seized cash.

R v M (Wolverhampton Crown Court) – Prosecutions application dismissed due to a defence response statement being concisely prepared.

R v L (Stafford Crown Court) – CPS conceded and withdrew application following defence submissions.

R v G (Warwick Crown Court) – Section 23 application made to reduce the value of the defendant’s available amount by circa £600,000.00.

R v K (Southwark Crown Court) – Prevented default sentence for 3 years on the basis that fund had to be paid from a foreign country.

R v K (Southwark Crown Court) – Section 23 granted due to foreign country unable to pay funds.

Under the Proceeds of Crime Act (POCA) 2002, an individual may face confiscation proceedings even after conviction, sentencing and serving time in prison, if they are found to have financially gained from the offence. The Prosecution will assess and take steps recover what you have gained from criminality from any assets that you have.

The Court will determine your available amount based on a valuation of your assets, but sometimes asserts may not meet this value when sold. If you believe your assets have been incorrectly valued and if you can prove that the true value of your assets does not meet the amount of the Confiscation Order, you may be able to apply for a variation to reduce the amount under Section 23 of the POCA 2002.

If the Crown believes that you have assets other than those which you have already declared, these are called hidden assets. In this case, the burden will be on you to prove otherwise. If you can’t prove that you have not hidden your assets, then it can result in an inflated assessment of your available amount and a higher Confiscation Order. It is important to seek legal advice because if you are unable to pay an inflated Confiscation Order as a result of hidden assets being added, it could lead to a further sentence for non-payment.

Depending on the stage of proceedings, the owner of the property may be able to prepare a third-party interest application under Section 10A of the POCA 2002.  If they don’t, there is a very serious risk that the property will be confiscated.

The owner should seek legal representation so that an assessment of their interest can be conducted and an application made to protect their financial interest in the property. This can be funded privately or through your legal aid if there is no conflict.

If the value of the Confiscation Order was lower than the amount that you obtained from your offence, the police can ask the Court for an upward variation of the Confiscation Order under Section 22 of the POCA 2002. There is no expiry period on when the police can do this and it usually happens when the police identify further assets belonging to you.

Repeated requests can be made until the whole amount has been paid, although the upward variation will only be granted if the Court is satisfied that you have further assets and it would be ‘just’ to do so.

If you have been convicted and face confiscation proceedings, the Court will determine whether or not you have a ‘criminal lifestyle’. This means that you have committed a specified offence under the POCA 2002, you financially benefitted from a course of criminal activity or the offence was committed over a period of six months or more.

If you are deemed to have a criminal lifestyle, the Crown can look back through your last six years of financial history to check if there is anything else which they think may be linked to criminality.

The benefit amount is the sum that you are deemed to have made from crime and this figure will remain until it is paid in full. The available amount is what you are deemed to have available to you in terms of assets to pay towards the benefit amount.

If your available amount is lower than your benefit amount, you Crown can impose an upward variation on the Confiscation Order at a later date if you come into further assets or money.

Selling overseas property to raise funds can be complex but you are unlikely to get any support from the Crown because it is your responsibility to pay the Confiscation Order. The process is different according to where the property is, but a good POCA law firm such as Askews can help you and minimise the risk of interest accruing due to delays. Remember, if you do not pay the Confiscation Order you can be handed a further prison sentence.

The Court will determine how long you have to pay a Confiscation Order. If you have assets to sell, you will usually be given a maximum of three months to pay. If you have been unable to pay the Order by this time, you can apply for an extension under Section 11 of the POCA 2002.

An extension will only be granted if the Court is satisfied that you will be able to pay the remaining amount by the end of the period. It is unlikely that you be granted an extension if you have not made any attempt to sell your assets.

If you have been charged with an offence and bank account has been restrained, you are entitled to Legal Aid to fund (or part-fund) your representation. You may be required to pay a contribution to the Legal Aid Agency at a later date towards your fees, depending on your circumstances.

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