Legal Adviser MILTON FIRMAN asks: What do I need to know about a Confiscation Order? – Part 1

In a unique move, experienced legal adviser, Milton Firman, offers FREE LEGAL ADVICE day or night, 7 days a week. He can also offer a “NO LEGAL COSTS SOLUTION”. Milton can be contacted at milton@miltonfirman.co.uk or by phone on 07909 900449
By: Milton Firman
 
Oct. 18, 2011 - PRLog -- You face a legal problem.  You may have sought advice and felt let down by the system.  Talk of hourly rates and vast fees.  Appointments you have to wait for, and even travel into town.  Delay, uncertainty and worry, lots of worry.  Now Milton Firman turns all of this on its head.

He advises immediately.  He is on call 24/7.  No appointments required.  He will see you at your home.  In the evenings or at weekends.  Fixed fees or no fees at all.  He is fearless and straight talking.  He is an experienced legal adviser, an expert in this field of law and offers advice regarding the best way forward for you.

This article should assist in isolating the important provisions of the Proceeds of Crime Act 2002. It is one of those Acts that any Defendant ignores at his peril. It is draconian as it is dramatic in its scope and effects. Just when a Defendant thinks his ordeal is over, POCA hits him hard.

It is not in substitution of a sentence but in effect amounts to an additional sentence. The Act creates a single model for confiscation following conviction in criminal cases.

The Act came into force on the 24th March 2003.

The Crown Court is now the one stop shop for confiscation and allied Orders. Unlike under the old law, an enquiry is now mandatory once the Crown request a hearing. There is now the concept of CRIMINAL LIFESTYLE. The Prosecution has a right of Appeal.

The expression CONFISCATION ORDER is misleading as the Order itself does not confiscate any property at all but actually requires the Defendant to pay money. The sum to be paid is the RECOVERABLE AMOUNT. This is either the full amount of what the Court has found to be his benefit from his CRIMINAL CONDUCT or the value of all of the Defendant’s remaining assets, called the AVAILABLE AMOUNT, if it is proved to be less.
An Order can be made only in the Crown Court against anyone indicted with an indictable offence or committed by the Magistrates. The Magistrates Court has no power to make a CONFISCATION ORDER.

In terms of procedure, the Prosecution must serve a STATEMENT OF INFORMATION whilst the Court can order the Defendant to respond to the Prosecution’s Statement or to divulge information at any time.

The first step is for the Prosecution to ask for an enquiry. In this event, the Court MUST order such enquiry. In addition, the Court can of its own volition start the process whenever it believes it is appropriate to do so.

The next step is for the Defendant to respond to the Prosecution Statement.

The concept of CRIMINAL LIFESTYLE is one introduced by the Act. Whether the Court can infer CRIMINAL LIFESTYLE depends upon the nature of the offence or offences of which the Defendant has been convicted in the current or earlier proceedings.

The Judge must then decide whether the Defendant has benefited from his GENERAL CRIMINAL CONDUCT. If, however, the Defendant does not have a Criminal Lifestyle, the Court must determine whether he has benefited from his PARTICULAR CRIMINAL CONDUCT.

The Judge must then determine the gross market value of the benefit which is referred  to as the RECOVERABLE AMOUNT. In the case of GENERAL CRIMINAL CONDUCT, the Judge is duty bound to apply the relevant assumptions as to income and expenditure in the previous six years and as to property held by the Defendant on conviction.

So far as the ASSUMPTIONS are concerned, they cannot be relied upon should that result in a serious risk of injustice or where the Defendant can demonstrate that an assumption is incorrect.

The process is mandatory where the Crown seek an Order initiating the process or the Court itself considers that it is appropriate to do so.

As to the burden of proof, the burden of proving both the fact that the Defendant has benefited from crime and the amount of his benefit is borne by the Prosecution. It is incumbent upon the Prosecution to prove that the Defendant received a particular payment before any assumption can be made that it represents the proceeds of crime.
In its statement, the Prosecution is not obliged to estimate or detail the Defendant’s available property as this is the Defendant’s task. The Court may at any time order the Defendant to provide it with information “to help it in carrying out its functions.”

The Judge cannot order any third party to provide information.

Where there was a previous contested hearing, the Judge is entitled to rely upon the trial evidence without having it reiterated at the Confiscation Hearing.

The Defendant will sometimes have submitted an AGREED BASIS OF PLEA at his sentence hearing. This will not necessarily be binding upon the Judge at this hearing.

Where there is CRIMINAL LIFESTYLE, there must follow an examination of the Defendant’s GENERAL CRIMINAL CONDUCT. This enables the Court to consider the fact and amount of benefit in the previous six years.

Section 10 of the Act provides for ASSUMPTIONS to be made by the Court in cases where the Defendant’s GENERAL CRIMINAL CONDUCT is under consideration. The Court MUST apply the ASSUMPTIONS unless satisfied that they are incorrect or unjust.
When the Court finds a CRIMINAL LIFESTYLE, there must be an historical enquiry into the Defendant’s GENERAL CRIMINAL CONDUCT. The Court is entitled to assume that all income over the previous six years represent the proceeds of crime.

There are statutory provisions setting out the circumstances in which CRIMINAL LIFESTYLE must be found. As follows:

•Offences set out in Schedule 2 including drug trafficking/brothel-keeping/money laundering offences/counterfeiting etc
•An offence which constitutes conduct forming part of a course of crime. This means either the Defendant must have been convicted of three or more other offences in the current proceedings each of which was committed on or after the 24 March 2003 – namely at least four offences in total or convicted on at least two separate occasions in the six years before the current proceedings were started. In order to qualify, the Defendant’s benefit from the offences or TICs must be at least £5000 (i.e. in total)
•An offence committed over a period of six months. This period may properly be determined by reference to the evidence

It must therefore be clearly understood that any enquiry into particular criminal conduct is restricted to the offences proved or admitted in the current proceedings including TICs.  The benefit from the offences must be proved on the balance of probabilities by evidence and inferences from the circumstances.

So far as GENERAL CRIMINAL CONDUCT is concerned, the Court MUST apply the required ASSUMPTIONS to all income and expenditure from the previous six years. In theory, the enquiry is not however restricted to the previous six years. GENERAL CRIMINAL CONDUCT amounts to all the Defendant’s criminal conduct regardless of when it was.

As to BENEFIT, the Defendant must “obtain property as a result of or in connection with the conduct.” His benefit is indeed the value of the property obtained.

Property is obtained if he obtains an interest in it. Where he obtains a pecuniary advantage, the benefit is equal to the advantage.

An Order cannot be made against more than one Defendant jointly and severally. The Court should endeavour to apportion the proceeds as between the Defendants and separate Orders should be made in respect of each of the Defendants.

For more information, here is the deal.  Call Milton on 0161 485 1100 or 07909 900449 at any time or him at milton@miltonfirman.co.uk

Write to him at 24 Byrom Street, Altrincham WA14 2EN.

He will always be pleased to speak to you at any time.  In confidence.  With confidence.

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Source:Milton Firman
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Zip:SK8 7AZ
Tags:Poca, Proceeds Of Crime, Confiscation Proceedings, Benefit, Confiscation, Criminal Lifestyle, Civil Recovery
Industry:Legal
Location:Cheadle - Cheshire - England
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