CONFISCATION PROCEEDINGS - The Legal Position explained in plain English

Aug. 9, 2010 - PRLog -- The Proceeds of Crime Act 2002 was intended to widen the net regarding proceeds of criminal behaviour. It was in theory a perefectly reasonable idea borne out of the question - why should a convicted criminal benefit from the proceeds of his crime? However, it has in the course of time gone much further.

The Court can either investigate PARTICULAR criminal activity or GENERAL criminal activity. The difference between the two is vast. Particular in effect means THIs crime or THESE crimes. General means going back over an entire lifetime.

To state that a Defendant has a CRIMINAL LIFESTYLE,  there are certain stated provisions. Once a Defendant has met those provisions, then the Court can indeed investigate the Defendant's GENERAL criminal activity. The Court can go back as far as it wants without limitation. But there is worse to come.

When it is held that a Defendant has a CRIMINAL LIFESTYLE, the floodgates open and in particular there are assumptions which the Prosecution and the Court can make which then put the onus upon the defendant to provce otherwise. For example, it is assumed that property has been bought from the proceeds of crime and any expenditure on property has a similar source.

So the next question is - when does a Defendant have a criminal lifestyle?

Either he has been convicted of a particular type of offence - eg trafficking, brothel keeping, possession with intent to supply drugs etc.

In addition, a criminal lifestyle applies if a Defendant  has committed an offence over a period of at least six months and the Defendant has benefited from such conduct.

Similarly, a course of criminal conduct istablished if the Defendant has been foiund guillty of three or more offences in the current proceedings from which he has benefited or such an offence on at least two separate occasions in the last six years. In either of these cases, the "relevant benefit" must be of no less than £5000,

The Prosecution generally serve a statement on the Defence and the Defendant must respond fully disclosing his financial position and detailing any benefit he has had. The Court is then asked to ascertain the realizable assets and then limit the amount of confiscation to available assets. It is a matter of ascertaining the art of the possible. What is there? If it is not there what has thje Defendant hidden which he is able to truthfully lay his hands on? It is not easy therefore to hide assets and make them disappear or dispose of assets at a knockdown price. The Court and the Judges are not fools and have seen it all before!

The Court wil therefore fix the amount but wil also then make it clear that if that amount is not paid, there will be a deafault period of imprisonment. If not paid, more trouble. The initial period for payment will be no more than six months, though further extensions of time can be requested. Worst still though. Even after a period in custody is served, the money remains outstanding.

Serious stuff!  For more information, please log on to www.confiscationproceedings.co.uk

or call 0161 485 1100