As I have discussed in a separate article, the crucial distinction is whether the Court can take account of CRIMINAL LIFESTYLE. In certain circumstances, the Court can look back at the lifestyle of a Defendant (for example, because of the nature of the charge against him) and once Lifestyle can be looked into, then the Court investigates wehat is referred to as GENERAL CRIMINAL CONDUCT. This can often spell trouble. It opens up the entire past dealings of the Defendant without limit as to time. But it also opens up another floodgate - the so called Assumptions. What is meant by these "assumptions?"
There are four assumptions made by the Court. In effect, it is assumed that certain matters have occurred UNLESS the Defendant can prove otherwise. This can be problemmatic and extremely troubling, for obvious reasons. The onus of proof has shifted. At a time when a Defendant can be in custody, in a distressed state, separated from his family and his paperwork, he is being asked to reconstruct his financial affairs, years after the event. This is in my view a gross injustice and needs to be taken to the European Courts, which one day I will do.
In the interim, these four assumprions remain in place. They need explanation.
The First Assumption is "TRANSFERRED PROPERTY."
It is assumed that any property transferred to the Defendant within the six year period preceding the commencement of proceedings for the index offence (this offence/s) was obtained by him as a result of his general criminal conduct and at the earliest time he appears to have held it. See Section 10(2) of the Act.
The proceedings start when a suimmons or warrant is issued or when the Defendant is charged without warrant.
Property is transferred if an "interest" in it is transferred of granted by another. In effect, therefore, the Judge must assume that anything of value that has been transferred to date since the beginning of the six year period and PCA enquiry represents the Proceeds of Crime.
THe Second Assumption relates to "PROPERTY HELD BY THE DEFENDANT AFTER CONVICTION."
It is assumed that any property held by the Defendant at any time after the date of conviction was obtained as a result of his general criminal conduct, at the earliest time he appears to have held it. See Section 10(3) of the Act. Where there is more than one conviction, the date is the latest of those convictions.
In this case, it need not be shown when he acquired the property, or that he obtained his interest in the last six yearts, but alll of the property which he holds at that point is assumed to be Proceeds of Crime unless the Defendant can prove otherwise.
Section 84 of the Act is important as it states that "property is held by a person if he holds an interest in it." It means that a Defendant still holds property even where it is vested in a trustee in bankruptcy or a liquidator. There is, it appears, no escape.
The third Assumption addresses the matter of - EXPENDITURE. In this instance, any expenditure incurred by the Defendant at any time after the commencement of the six yerar period was met by him from property obtained by him as a resullt of his general cdriminal conduct. See Section 10(4) of the 2002 Act.
The expenditure itself cannot be assumed, but once the expenditure is established, the Court MUST (not MAY) assume that he has funded the expenditure from the proceeds of earlier crime UNLESS the Defendant can prove otherwise.
The amount of the expenditure is NOT to be assumed and it is the ACTUAL amount which the Defendant paid out.
The final Assumption relates to PROPERTY FREE OF OTHER INTERESTS.. It is assumed that for the purpose of valuing property proven or assumed to have been obtained by the Defendant was property in which he is or was the only person with any interest in that property. See Section 10(5) of the Act.
The basis principle that we are innocent until proven guilty has been turned on its head in this draconian about turn. The effect is devastating. However, there are some safeguards of sorts.
The Judge cannot make a particular assumption "if it is shown to be incorrect." See Section 10(6)(a) of the Act. If the Defendant can prove on the balance of probabilities that a particuar source of income is legitimate, the Court MUST not treat it as the benefit of criminal conduct. If, however, the Court finds an assumpotion to be incorrect, then it must provide reasons for its conclusions. See Section10 (7).
In addition, a mandatory assumption can also be avoided when "there would be a serious risk of injustice if the assumptionm were made." THe onus is NOT upon the Defendant to prove that injustice. This is extremey important but can be easily and tragically overlooked.
As an example of so called injusice, we might take a look at a basis of plea. If it is accepted by the Crown in a basis of plea that we had no previous involvement inm drugs supply, it would be unjust at the Confiscation hearing to assume otherwise.
There might be some further relief from the case of DEPRINCE in which it was held that, even if the assumptions are not proved to be incorrect, if the Court is satisfied of the serious risk of injustice, it may, in an appropriate case make a percentage discount in order to guard against the possibiity that part nof the property or expenditure had a legitimate source. THis is a very important nprinciple.
THe Assumptions can clearly have a devastating effect. They need to be contested very vigorously as the onus is upon the Defendant and so silence will not do. AFter addressing the bassumptions by reference to forensic accounting if necessary, it is necessary then to look at the possibility of injustice.
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