Proceeds of Crime
Dedicated POCA Team
Carter Moore Solicitors are proud to say that our dedicated POCA team, led by John Hera, have years of experience in defending some of the largest and most complex POCA cases being heard by the Courts. If you or a loved one has recently been convicted or sentenced then you must act quickly to ensure any POCA proceedings are vigorously defended by an expert before any mistakes are made by amateurs.
This is a very specialist area of Criminal Proceedings and requires lawyers who specialise and work only on POCA cases.
POCA Act 2002
There is so much to say about the act, most of which is mind boggling, so it seems senseless to explain the intricacies of the Act here. If you do decide to instruct us, we will explain it to you in simple terms and only what is relevant to your case. We will not overburden you with unnecessary information – that is for us to worry about.
Confiscation Proceedings are often viewed by Defendants as being far worse than the substantive offence itself. This is mainly due to how complicated the proceedings can be but more importantly that a confiscation order can have lifelong consequences. POCA proceedings are very harsh and are robustly enforced.
The principal behind the Proceeds of Crime Act was to strip criminals of their ill-gotten gains, however, for most defendants, it is far more reaching and can feel like a further and more severe punishment.
Challenging Crown's Case
Here at Carter Moore we understand that it is necessary to challenge every aspect of the Crown’s case, particularly the benefit figure, which to most people will seem it has been plucked from fresh air -which it usually is. Because the burden of proof reverses to the defence, the Crown come up with any random figure, because they can, because you have to disprove it.
Most lawyers take for granted the benefit figure but our Department Head, John Hera, is fully aware of the importance of the benefit figure – because the disparity (difference between the benefit and available) really can be a debt for life. It should never be underestimated by defendant solicitors and not treated glibly. Many solicitors will advise you that only if you win the lottery or inherit vast sums of money is it an issue. This is simply not true, and is covered below.
Analysis of Financial Information
The best way to challenge the benefit figure is through very careful, forensic like detailed analysis of all financial information. If the case is particularly complicated with lots of financial strands we will work alongside some of the best forensic accountants. As a convicted criminal, defendants often lack credibility and it is real risk to call a defendant as a witness so it is important to get as many credible witness as possible and who better than a forensic accountant?
In addition to challenging the benefit figure, the available amount is of the utmost importance as this is the figure that a default sentence is based upon. Our team will ensure that all and any assets are valued properly and will also go that extra mile and help you sell the assets once the order is made. We do not abandon clients when the order is made, in our view the proceedings are not over until the order is paid. This way we can ensure that clients do not have to serve a default sentence. We would never agree an order unless we know for sure that a defendant can pay it. In the hundreds of POCA cases our team has done, not one client has had to serve a default sentence.
This is one of the harshest sections in the Act and applications are on the rise. This is when the CPS/SFO/NCA apply to increase the available amount as they have information that assets are now available that were not when the confiscation order was first made. The Crown now have a team of dedicated Financial Investigators (FI’s) who monitor people with confiscation orders and they have a whole raft of methods of detection such as monitoring social media accounts, alerts from banks, monitoring land registry, and surveillance. So if the value of your house increases, the Crown will apply for a Section 22 to increase the order to that amount. If you are seen driving a car that is not on finance or Lease Purchase, they will apply to take the car off you. If you have a few thousand pounds in the bank, they will apply to take it. They will also restrain the account first and then ask questions later. These are difficult to defend but our team have been instructed on many of these applications and have been successful. This is why we warned above that a confiscation order really is for life and these applications are now rife and the only way to prevent them is to make sure the disparity is a low as possible when the order is first made.
This is to extend the time to pay the order from 3 months to 6 months.
Restraint Orders and Forfeiture Proceedings
In addition to post conviction POCA work, we are also experts in pre and post charge Restraint Order proceedings, such as to vary them to allow for mortgage payments etc. We are also regularly instructed in cash forfeiture proceedings.
As can be seen we offer services on the whole gamut of the Proceeds of Crime Act and if you have any queries at all then contact us on the details below.
It is also very important to know the current case law. In the last several years there have been some monumental decisions made in the Court of Appeal and Supreme Court, many of which have favoured the defence and one of the other ways to challenge the benefit figure is being knowledgeable with case law.
John's knowledge of case law is vast and he keeps a watchful eye over any new rulings to see if they can be applied.
In addition to defending in main POCA proceedings, our team have received numerous instructions in ancillary matters. These are applications made once an order is made (and often paid) under various sections of the Act.
This is an application made by a third party who has a beneficial interest in a property. The 2002 Act was amended in June 2015 allowing for interested parties to be heard before the Court.
This is an application to reduce the confiscation order if an asset does not realise its full price. As stated above, here at Carter Moore we always assist our clients to sell their assets because if they do sell short we will automatically make the application to reduce the order so that there is no risk of any default sentence being imposed.
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