conifscation orders

BSQ Fraud Team instructed to Challenge £64m Confiscation Order

BSQ’s Fraud defence team has been appointed to represent Dr Gerald Smith in enforcement proceedings concerning one of the highest confiscation orders ever made – now standing in excess of £64m including interest - ever made in the UK.

Mr Smith features in proceedings brought by the SFO in one of the largest cases under the CJA 1988 to be ever heard, presided over by Mr Justice Popplewell before the Commercial Court. The complex litigation involves more than 12 different parties and concerns assets worth in excess of £200 million.    

The BSQ partners instructed are Daniel Godden and Roger Sahota.   

The case has been widely reported in the media including the Evening Standard.  

Berkeley Square Solicitors Negotiate Favourable Confiscation Settlement

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. 

 

Berkeley Square Solicitors Instructed In Multi-Million Pound Third-Party Enforcement Receiver Proceedings

Roger Sahota has been instructed in third party enforcement proceedings emanating from one of the largest fraud cases in the country. In recent confiscation proceedings, our client's former partner was made subject to a confiscation order in the sum of £100m (benefit) with an available amount in excess of £5m. We have applied to the court for our client’s third-party interest in property included in the underlying valuation to be recognised. This case raises a novel point concerning the application of the Proceeds of Crime Act enforcement receivership provisions in cases where the legal title of property vests in someone other than the subject of the predicate criminal and confiscation proceedings.

Richard Thomas of Doughty Street Chambers, a recognised expert in enforcement receivership applications has been instructed as Counsel.

If you have a query concerning POCA confiscation or enforcement receivership applications please contact Roger J Sahota.

Berkeley Square Solicitors instructed in Third Party In Challenge to Multi-Million Pound Confiscation Order

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.

Confiscation Order Settlement for Berkeley Square Solicitors

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.

Read our clients review on Google reviews here.

if you require advice on a confiscation application under POCA 2002 please contact our financial crime department.

 

Confiscation Order Blogs – Reviewing the History of the Proceeds of Crime Act

Confiscation Order Blogs – Reviewing the History of the Proceeds of Crime Act

The Proceeds of Crime Act legislation is the most commonly used confiscation law. It is often described as draconian. Interestingly, the legislative background demonstrates that it was deliberately drafted to clamp down hard on the what was then seen as a loophole in the law.  

Client Guide to the Confiscation Order Process

Client Guide to the Confiscation Order Process

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

Confiscation Orders Blog – Section 22 of POCA

Confiscation Orders Blog – Section 22 of POCA

Anecdotal evidence suggests that there has been an significant increase recently in the number of applications recently made under Section 22 of POCA 2002.

This provision allows the Crown to apply to the court for a reconsideration of a defendant’s available amount after the confiscation order has been made. 

 Many recent clients have fallen foul of these provisions.  In one case, Client A, a defendant who had served his default sentence having been made subject to a confiscation order in excess of £1 million had recently found himself subject to a potential Section 22 Application. 

Longer Prison Sentences Will Not Solve Our Confiscation Crisis

Facing withering criticism from the Chair of the House of Commons Public Accounts Committee, a Senior Ministry of Justice official issued an ominous warning last week, writes Roger Sahota.

 Mark Sedwill, answering questions from Chair Margaret Hodge MP, said that Government Ministers were considering changing the law to allow courts to impose even longer prison sentences in the face of criticism that the enforcement record of the authorities in recovering Confiscation Orders had been an abject failure.

 Mr. Sedwill did not provide any further details of the Government’s proposals.

Mr. Sedwill’s also claimed that the yardstick of the success of the confiscation regime should not be the revenue raised – an estimated £133m in 2011-12 against a cost to the taxpayer of £100m – but in the effect it had in deterring criminals from further offending

 At present those that default on Confiscation Orders can face prison sentences of up to ten years in addition to any penalty for the offence they are convicted of.  They are still liable to pay the sum owed once they serve the default sentence, with interest charged at 8% per annum.

As discussed elsewhere in this blog, there is little evidence that the threat of a lengthy prison sentence either acts as a deterrent or is effective in persuading offenders to cough up and pay the amounts they owe.  In fact, only 2% of offenders paid in full once a default sentence was imposed according to the National Audit Office Report published on the 17th December 2013.  

The original article can be found at www.confiscationorder.com

The Limits of Proportionality 2

The Supreme Court’s (SC) judgment in Waya ([2013] 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.

Full Recovery

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 itR 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

The Limits of Proportionality 1

 

The Supreme Court’s (SC) judgment in Waya ([2013] 1 A.C. 294) has been rightly lauded as a landmark decision in the field of post-conviction confiscation, writes Roger Sahota in the second of a series of articles considering the impact of the case.

No Return to Judicial Discretion

Many defence practitioners regularly express frustration at the “draconian” confiscation orders that often result from the operation of the mandatory provisions of POCA.

To their dismay, the SC in Waya was careful to emphasise that it’s decision did not (and could not) confer Judges with any discretion as to the making or quantum of a confiscation order.

Under the old confiscation laws the position was different. s.71 of the Criminal Justice Act of 1988 allowed a Judge to make a confiscation order to “pay such sum as the court thinks fit” in certain circumstances.

In Waya the SC hinted that a return to the position under the old law might be desirable however;

“The Crown Court has encountered many difficulties in applying POCA ‘s strict regime. Many of the complexities and difficulties of confiscation cases, arising from the extremely involved statutory language, would undoubtedly be avoided if a measure of discretion were restored, but whether to restore it, and if so in which form, is a matter for Parliament and not for the courts.”

The original article can be found at www.confiscationorder.com

Waya 1 - A Novel and Imaginative Development of the Law

The Supreme Court’s (SC) judgment in Waya ([2013] 1 A.C. 294) has been rightly lauded as a landmark decision in the field of post-conviction confiscation, writes Roger Sahota in the first in a series of articles considering the impact of the case.

Waya concerned a mortgage fraud which is dealt with below. However, the most important part of the ruling was the SC’s application of the principle of proportionality in confiscation proceedings (paragraphs 1-34) and the implications of the stance taken by a minority of the SC justices.

Confiscation Orders Must be Proportionate i.e. Fair

In summary, the SC said that a sentencing judge was entitled to refuse to make a confiscation order if it was “disproportionate” because it breached Article 1 of the First Protocol the ECHR (referred to as “A1P1”).

A1P1 guarantees the right to “peaceful enjoyment” of one’s possessions which can only be interfered with in limited circumstances in the public interest.

In itself this declaration adds nothing new to the law. Our courts are required to take account of the provisions of the ECHR as it was incorporated into English law with the passing of the Human Rights Act.

What has changed as a consequence of the SC’s ruling is the requirement for a proportionality test to be applied to every confiscation order.

The SC was divided on what that test should be. The prevailing majority view has it’s limitations but still merits claims of a significant shift in the judiciary’s approach to confiscation orders.

Lord Philips described the identification of A1P1 as “novel and imaginative.” It is worth noting nonetheless that the SC’s decision echoes the submissions made in R v May by the Defence (Andrew Campbell Tiech QC). May was the leading House of Lords confiscation authority before Waya. Interestingly, Lord Philips and Baroness Hale presided over both appeals;

“The submissions attractively advanced by Mr Campbell-Tiech QC for the appellant were in essence simple. Parliament intended to establish a confiscation regime which was effective but fair. It intended to strip wrongdoers of their ill-gotten gains but not to deprive them of that which they had never had, to permit recovery of the same sum against different defendants or to permit recovery of a sum exceeding what the victim had lost. Such results were oppressive and disproportionate, inconsistent with article 1 of the First Protocol to the European Convention on Human Rights”

The original article can be found at www.confiscationorder.com