Roger Sahota is one of the leading confiscation law solicitors in the country. Roger writes extensively on the subject and has been instructed in a number of high value confiscation cases. He has a particular niche in representing third parties such as wives or business partners claiming an interest in property or assets that is ordered to be sold to pay towards a confiscation order. Roger jointly edits Fraud Focus, a website highlighting the latest developments in financial crime, together with some of the leading barristers in the field.
Specialist advice is essential in confiscation cases. Confiscation law is a self-contained branch of criminal law and procedure involving a high degree of complexity and knowledge of civil law principles governing the status of trust funds, pensions, overseas assets, tainted gifts, hidden assets and third party interests as well as receivership and bankruptcy law and procedure.
The purpose of a Confiscation Order is to deprive a defendant of the benefit he or she has obtained from criminal conduct. The Court has wide ranging powers to make “assumptions” as to whether any assets represent a benefit from criminal conduct that is potentially liable for confiscation. When calculating the sum of the Confiscation Order the court can also make assumptions about any hidden property or tainted gifts connected to the accused. Individuals who fail to take proper advice and prepare their cases adequately stand to forfeit all of their assets including, for instance, their interest in a jointly owned property such as a matrimonial home.
Following a conviction for fraud or many other types of criminal offences, the Crown or the Court can consider confiscating the defendant’s assets as part of the sentencing process. With growing pressure on government agencies to secure income from external sources (the Home Office target for seized assets in 2010 is £250m, a substantial increase from £10m in 2005/6) applications for confiscation are now routine in fraud cases.
Prosecuting agencies have a strong incentive to pursue confiscation because fifty per cent of the monies raised used to fund the investigators, prosecutors and the court service.
Confiscation Orders Under the DTOA and CJA
Confiscation Orders for all offences charged or indicted after 23 March 2003 are governed by the Proceeds of Crime Act 2002. Earlier legislation such as the Criminal Justice Acts of 1988 and 1994 and the Drug Trafficking Offenders Act may apply to offences committed before this date.
There are significant differences in the confiscation law and procedure that applies to POCA offences and the older legislation. For example, confiscation orders made under the old legislation that are still outstanding are enforced in the High Court, rather than the Crown Court which presides over POCA applications. Under the old legislation provision could be made for the payment of legal expenses incurred during the proceedings and this does not apply under POCA.
Furthermore, in some cases Defendants may not have the right to apply to vary an order made under the CJA or DTOA legislation but other avenues of challenge may arise.
Third Party Rights of Others Affected by Restraint and Confiscation Orders
Anybody affected by a restraining order or confiscation order (e.g. a spouse, friend or relative of a defendant) should act quickly to protect their interests.
Third parties could be affected by an order if for instance they have a joint share in the ownership of a property with he accused or if it is alleged that they have been the beneficiary of a “tainted gift” that has been transferred or sold at a significant undervalue.
Family members or friends who are affected by restraint orders have the right to be represented and can apply for the orders to be removed or varied to the Crown Court and for payment of their living expenses and in some cases, legal expenses incurred that are unconnected with the pending criminal case.
In certain circumstances a third party may be able to apply to the High Court for a declaration of their interests in a contested joint property.
In confiscation proceedings the Crown’s case is normally prepared by financial investigators lacking any accountancy background. Discrepancies can therefore arise in the claims made by the Crown which may include grossly inflated calculations of benefit and the amount available for confiscation due, for instance, to the double counting of receipts and expenditure.
We work alongside and regularly instruct expert forensic accountants to identify, challenge and rebut the evidence relied on by the Crown.
Case Studies and Testimonials
D was convicted of numerous mortgage fraud offences involving multiple properties. After serving evidence that he had a serious gambling addiction, the Crown accepted that he had dissipated most of the money he had obtained from his conduct. A final confiscation order was agreed with a benefit figure in excess of £600,000 but an available amount of less than £21,000.
B was convicted of drug trafficking offences more than 20 years ago in a high profile customs prosecution. His realisable assets figure was revised upwards on the basis of wealth he had accumulated after his original conviction under the provisions of the DTOA. The order made against him remained outstanding as the authorities failed to take steps to trace him for many years. Following High Court proceedings to vary the terms of his order, his benefit was settled in excess of £400,000 with an available amount of more than £75,000. At the enforcement stage, in anticipation of an abuse of process application given the delay in litigating the case, the Crown did not ask for a prison sentence in default of payment and agreed to allow our client to repay the balance at £5.00 per week.
C, the wife of a wealthy businessman convicted in a multimillion pound property fraud, had paid towards the purchase price of the matrimonial home. The home had to be sold to pay towards the husband’s confiscation order. She sought advice on her right to a share in the proceeds of sale from the disposal of the matrimonial property valued at over £5m at the enforcement stage.
E partner was conivicted of faud offences. The Crown included the full value of the matrimonial home, which was in her name, when calculating herbenefit from criminal conduct. E spoke to a number of lawyers before consulting Roger Sahota. After making representations, the Crown agreed that D’s partner’s interest should be reduced to 33% of the equity in the property to reflect the payments that D had made over the years towards the mortgage and purchase costs.
Articles and Blogs
Roger Read Roger Sahota’s commentary on Confiscation Orders – “Orders Need to Suit the Facts” in the Law Society Gazette.
Read Rogers blogs on confiscation law from Fraud Focus below:
Draconian Default Sentences on the Horizon - March 2014