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

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.

The term BENEFIT means more than property obtained “as a result of” criminal conduct. It also includes property which has been obtained in connection with criminal conduct. Benefit can also include payment of incidental expenses.

Where it is found that there has been a CRIMINAL LIFESTYLE, there are ASSUMPTIONS which must be made unless there are circumstances set out in the Act.

The first ASSUMPTION is that any property transferred to the Defendant within the six year period preceding the commencement of the proceedings for the offence(s) in question was obtained by the Defendant as a result of his GENERAL CRIMINAL CONDUCT and at the earliest time he appears to have held it.

The second ASSUMPTION is that any property held by the Defendant at any time after the conviction was obtained as a result of his GENERAL CRIMINAL CONDUCT. In effect, therefore, all of the property which he holds at that point is assumed to be the proceeds of crime unless the Defendant can prove otherwise. Property is held by a Defendant if he holds an interest in it.

The third ASSUMPTION is that any expenditure incurred by the Defendant at any time after the start of the six year period was met from property obtained by him as a result of his GENERAL CRIMINAL CONDUCT.
The amount of the expenditure itself is not to be assumed.

The fourth ASSUMPTION is that the starting point for the valuation of property proven or assumed to have been obtained by the Defendant is that he was the only person with any interest in the property.

The Judge cannot accept the assumption if it is shown to be incorrect or if the Defendant can prove on the balance of probabilities that a particular source of income is legitimate. A mandatory ASSUMPTION can again be avoided wherever there would be a “serious risk of injustice.”

Having decided that the Defendant has benefited from either particular or general criminal conduct, the Court must decide what is the RECOVERABLE AMOUNT. The Defendant can however reduce the amount of the Order if he can prove that the value of his actual assets known as the AVAILABLE AMOUNT is less than the benefit figure.

It must be borne in mind that BENEFIT does not mean profit. In effect, therefore, all of the property obtained is to be accounted for and not merely the profit element.

The AVAILABLE AMOUNT is the aggregate of:-

a.The total value at the time of the Order of “all the free property held by the Defendant (minus the total amount of any priority obligations) and
b.The total value of all TAINTED GIFTS.

In calculating the value of the AVAILABLE AMOUNT, the Court is not limited to taking into account property which the Prosecution can prove to exist. As to TAINTED GIFTS, the Defendant makes a gift if he transfers property to another for “significantly less” consideration than its value at the time he obtained it. The position with TAINTED GIFTS differs according to whether there is or is not a CRIMINAL LIFESTYLE. Where there is, a gift is “tainted” if it was made since the start of the six year period preceding the commencement of proceedings. Where there is no CRIMINAL LIFESTYLE, any gift is tainted if made after he committed the earliest index offence or offence taken into consideration in the proceedings.

As to THIRD PARTY INTERESTS, the Defendant is deemed to hold any and all property in which he has an interest. He holds property notwithstanding that others may have legitimate and even greater interests in the same property. The figure to be included in the AVAILABLE AMOUNT is the market value of his interest at the time of the Order. The genuineness of a mortgage loan will be a question of evidence at the hearing. The Defendant may call third parties to give evidence as to their interest in any property.

However, the third party has no right to make his own application as they have no control over the proceedings. At the enforcement stage, third parties are however permitted to protect their interests.

The two year limitation period for pursuing these proceedings can be extended in “exceptional circumstances.”

Ultimately the Court must fix the RECOVERABLE AMOUNT. It must refer to a specific figure, not a vague one. The starting point is that the payment must be made immediately. However, if the Defendant needs time to pay, he can be permitted a specific period of no longer than six months after the Order is made. That time period can be extended.

If the amount referred to in the Order is not paid in time, interest accrues on the outstanding balance. The Court must also fix a default term of imprisonment ranging from seven days up to ten years according to the amount ordered and unpaid. It appears that the Defendant will serve one half of the additional term imposed as a result of default. The DEFAULT PERIOD is served consecutively. It is remitted if payment is made. Even after the DEFAULT TERM, the balance remains outstanding. If an Order is not complied with, an ENFORCEMENT RECEIVER may be appointed to take possession of realizable property; manage or deal with property; realize the property; bring or defend legal proceedings.

CONFISCATION ORDERS can be varied within 28 days under the general “slip rule.”  

There is the right to seek a reconsideration thereafter due to assets not realizing what was originally envisaged. The Defendant or an appointed Receiver may apply to the Crown Court for the amount of the Order to be reduced if the available amount is inadequate for payment in full. The Court can substitute “such smaller sum as the Court believes is just.” The Defendant is seeking a CERTIFICATE OF INADEQUACY.

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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