Confiscation law is one of the most complicated areas of criminal law. Roger Sahota is one of the leading criminal solicitors in this narrow field. We have prepared this guide for clients who are concerned at what will happen if they are involved in confiscation proceedings after their conviction.
This guide has been prepared in response to many frequently asked questions from of our confiscation clients we have prepared an overview of the confiscation process under POCA 2002.Itr predates the Serious Crime bill 2015. It is a general gude to the law and procedure - for specific advice on your individual case please contact a lawyer.
Below we set out the procedure for defendants who are asked to provide a financial statement after their conviction.
POCA Confiscation Procedure
The Confiscation procedure begins in the Crown Court after an Defendant has been sentenced.
Who Brings the Confiscation Proceedings?
The confiscation process begins as soon as a prosecutor requests it or the court believes it to be appropriate. If the Prosecution requests it the Court must proceed.
The process begins in a case where the Prosecution brings proceedings when the Crown serves a notice on the Court under s 16 of POCA. This notice confirms their intention to apply for confiscation.
What is the Standard of Proof?
Unlike ordinary criminal cases, the standard of proof in any POCA case, for all parties is the balance of probabilities, a lower threshold than beyond reasonable doubt.
Ordinary rules of criminal evidence also do not apply so, for example, hearsay evidence is admissible.
What Information Must the Defendants Provide?
The Defendant will receive a statement from the Court issued under Section 18 (3) of the Proceeds of Crime Act.
The notice requires an Defendant to provide a statement detailing all of their assets and liabilities by a certain deadline. The Defendant must set out details of all assets including
• bank and building society accounts,
• savings, investments, premium bonds,
• stocks and shares,
• cash deposits,
• traveller cheques, postal orders and other financial instruments
In lifestyle cases, the defendant must provide details of any gifts of transfers received of property from the relevant date i.e. six years before the present case began.
Supporting documentation must also be provided including receipts, invoices, statements and proof of purchase and ownership.
The Court will provide a timetable for the Prosecution to reply to the statement from the Defence and the date for a final hearing.
What are the Prosecutor’s Powers?
A Section 16 POCA Notice, known as a Statement of Information will be prepared by the Crown’s Financial Investigator early in the proceedings and normally once the Defence statement has been received.
The statement contains all the matters that the Prosecutor believes are relevant for the court to consider when deciding the case.
The statement will indicate if the Crown claim that the Defendant has a criminal lifestyle.
During this process the Prosecution can use their investigative powers under POCA to make further enquiries to determine what assets a Defendant has.
The s 16 statement will set out the
• relevant facts of the underlying conviction
• summarise the defendant’s financial circumstances
• what is believed to be is the defendants benefit, the recoverable and available amount
• the amount of the confiscation order requested
• It will clearly state if the Prosecution believes that the defendant has hidden assets or has made tainted gifts.
What are the Court’s Powers?
The Court has various investigative powers it can exercise at the request of the Financial Investigator and the Crown. Generally the Court also has a wide power to order an Defendant to provide further information to help it carry out its functions. If the Defendant does not co-operate, the court can draw an inference.
What Must the Defence Show?
If the Defence disagree with any of the facts that the Prosecution rely on or the conclusions arrived at they must say why. Failing to object could be seen as acceptance of the Crown’s submissions.
The Defence must serve a formal reply to the prosecutors notice setting out the information requested supported by a statement of truth from the defendant.
Documents should be provided by the Defence to prove any of the points they rely on. The court will not accept or vague or generalised assertions made by the Defence.
In some cases it may be possible for the Defence and Prosecution to agree on the amount owed and the quantum of the confiscation order. However, the Court is not bound by any agreement made by the parties.
What Happens At The Final Hearing?
Both parties are entitled to file replies and counter replies to the statements of information they rely on. After the parties have filed the documents, evidence and additional skeleton arguments they rely on a final date will be set for the confiscation hearing.
At this hearing witnesses and experts can be called to give evidence. The Defence have every opportunity to challenge evidence against them and to call witnesses. Both parties will present their closing arguments before a decision on the Confiscation Order is made.