BSQ partner and Fraud expert Daniel Godden and partner Roger Sahota have been instructed in challenging one of the U.K.’s largest confiscation orders.
Berkeley Square Solicitors partner Goran Stojsavljevic successfully represented a client in complex confiscation proceedings following a conviction in a £3m fraudulent trading prosecution. The Court accepted that our client did not have any beneficial or legal interest in a list of properties that the Crown asserted belonged to him. Consequently a settlement was reached at a figure £410K below that initially requested by the Crown.
Counsel instructed was Benjamin Newton of Doughty Street.
For more details see http://www.bbc.co.uk/news/uk-england-bristol-32031442
If you require advice on a confiscation or fraud matter call our Mayfair offices.
Roger Sahota has been instructed to represent a third party interest in challenging one of the UK’s largest confiscation orders.
The case concerns a potential application under s2 of the Serious Crime Act 2015 for the Crown Court to recognise the interest of a third party in property included when calculating the amount available for the Defendant to pay towards his order.
Roger Sahota is currently representing a number of third party interests in challenging the terms of confiscation orders.
Roger has a particular specialisation in acting on behalf of the wives, business partners or family members or convicted offenders who wish the court to take into account their beneficial interest in property which is the subject of confiscation proceedings.
Our confiscation department is happy to report another successful outcome in a case where we represented a third party to confiscation proceedings.
Our client had instructed a number of other lawyers before he was referred to Roger Sahota. After making representations to the Crown Roger was was able to persuade all parties to agree to a settlement at a fraction of the original amount sought. The case concerned an application for a spouse applying for their interest in the matrimonial propoerty to be recongised after an order had been made. The value of the house had been taking into account when calculating the available amount under the order.
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if you require advice on a confiscation application under POCA 2002 please contact our financial crime department.
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.
The Supreme Court’s (SC) judgment in Waya ( 1 A.C. 294) has been rightly lauded as a landmark decision in the field of post-conviction confiscation, writes Roger Sahota in the third of a series of articles considering the impact of the case.
Last week I noted how the SC in Waya were careful to emphasise that their decision did not provide Judges with a discretion to tailor confiscation orders to suit the facts of a case.
However two further important qualifications also applied to the Courts decision.
First, the SC made it clear that A1P1 will have limited application to S.75 “lifestyle” cases where the assumptions are triggered.
Second, the SC also upheld the House of Lords observations in May concerning an offenders benefit.
Proportionality in Lifestyle Cases
In certain cases POCA allows the court to assume that any property transferred to or held by an offender in a six year period prior to the commencement of the proceedings represents the proceeds of criminal conduct. The burden is on the offender to displace the assumption.
S10(6)(a) and (b) of POCA allows the court to disapply the assumptions if they can be shown to be incorrect or if making them would give rise to a serious risk of injustice.
In the SC’s opinion the operation of these “safety valve” provisions made it very unlikely that any order would “court the danger of being disproportionate because the assumptions will only by applied if they can be made without risk of serious injustice.”
R v May Still Rings True
The SC was also at pains to state that the operation of A1P1 would not result in a new definition of an offender’s real benefit.
Nor would it allow criminals to set off the expense of committing their crimes as if they were legitimate business costs against the sum they were required to pay to the court. The findings of the House of Lords in May still rang true and a “legitimate, and proportionate, confiscation order may have one or more of three effects:
(a) it may require the defendant to pay the whole of a sum which he has obtained jointly with others;
(b) similarly it may require several defendants each to pay a sum which has been obtained, successively, by each of them, as where one defendant pays another for criminal property;
(c) it may require a defendant to pay the whole of a sum which he has obtained by crime without enabling him to set off expenses of the crime.”
So When is an Order Disproportionate?
Unfortunately the SC gave scant guidance as to when it would be unfair to make a confiscation order. References were made to two past cases that the Court felt that should have been decided differently as examples of where in future a confiscation order “ought to be refused” by the Judge as a disproportionate measure.
Confiscation in Excess of the Victims Loss or Offenders Reward
Citing R v Shabir (a pharmacist overcharged the NHS by £464 but the Crown applied for a confiscation order in excess of £400,000) confiscation orders where the victim’s loss or offenders reward is disproportionate to the quantum of the order may be disproportionate.
An order where the offender had repaid the sole victim the extent of his loss in full may also be disproportionate as in R v May.
While these examples give some clues as to the approach endorsed by the SC, the category of cases amenable to challenge must remain open and is likely to provide fertile ground for argument in the future.
The Future Post Waya?
According to the editors of the Criminal Law Review there are many decisions where confiscation orders have been upheld that may now be in question. They provide some pointers to the avenues that could be explored;
Where the Defendant repays an amount equivalent to the sum he receives from the fraud – query if the order should not be based on the sum obtained but the profit made from it – R v Farquhar
VAT evasion cases – where the goods liable to duty are seized and so any pecuniary advantage to the offender is purely notional
Money Laundering – should a launderer receiving a specific fee for allowing monies to wash through his account be liable for the entire sum passing through his hands (Allpress)
R v Neuberg – a business providing value to customers but operating under a name closely associated to another venture now in liquidation, should the order take into account it’s entire turnover
The original article can be found at www.confiscationorder.com