Asset Forfeiture
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What is Asset Forfeiture?
All asset forfeiture procedures are initiated under the Proceeds of Crime Act 2002 (POCA), which fall into three types:
- Confiscation proceedings
- Cash forfeiture proceedings
- Civil recovery proceedings currently brought by the Assets Recovery Agency (ARA)
Neither cash proceedings nor proceedings for a civil recovery order require a prior criminal conviction. Experienced barristers at St Pauls can provide legal advice at every step of the way during any forfeiture proceedings.
Confiscation is a very important area of law. It has far-reaching consequences for defendants. The rules on confiscation appear quite complex but taken a stage at a time they can be easily understood. Defendants will want to ensure that the benefit figure is as low as possible to reduce the amount of money payable under a confiscation order – this will be of particular importance for defendants with a significant amount of assets.
Confiscation proceedings for criminal forfeiture follow the vast majority of crimes involving fraud, tax evasion, and money laundering. The proceedings can follow the course of confiscation, cash seizure, restraint, receivership, or freezing orders. They are in place to deprive the defendant, as well as friends, family, or colleagues, of any possible financial benefit from criminal conduct.
Civil recovery proceedings are different from criminal forfeiture and are taken in the High Court. It needs to be established that on the balance of probabilities, criminal forfeiture activity has taken place and the funds which it seeks to recover, represent the proceeds of crime. Unlike confiscation proceedings, civil recovery concentrates on the property in actual ownership of the defendant.
For more information on forfeiture proceedings, as well as criminal forfeiture, please refer to our blog post.
Barristers
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Proceeds of Crime Act
The POCA is principally designed to target “career criminals” and hit them in their pockets. To that end, when defendants are convicted of a criminal forfeiture offence either by pleading guilty or being convicted after a trial, they may be subject to a POCA application.
Any application falls into 2 parts:
- What has the defendant benefited from either for the offence or in the past from crime? (BENEFIT)
- What can he afford to pay? (AVAILABLE AMOUNT)
The first step is always the benefit figure.
Certain offences listed in Schedule 2 (normally drugs offences and the like) of POCA will mean the defendant has a ‘criminal lifestyle’. If not, the court will ask whether he has benefited from that offence. The main question at the outset is therefore whether the prosecution is saying that the defendant has benefited from just that offence or has a criminal lifestyle. If the court finds the defendant to have a criminal lifestyle, the effects are significant.
The court will then look back up to 6 years and assumes all unaccounted monies, exchanges of property, payments that have been from crime. For example, someone may have gifted him/her £10,000 5 years before the current offence this will be considered criminal unless the defendant can prove it didn’t come from criminality.
The defence has to look back through 6 years’ worth of receipts, claims, and property transactions. Also proving to the court that they are legitimate.
How St Pauls Can Help with Asset Forfeiture Laws
This is where St Pauls Chambers can assist. Forfeiture lawyers at St Pauls are highly experienced in the provisions of the Proceeds of Crime Act (POCA) and ready to defend and advise you through the complexities of either proceedings or appeals. Contact St Pauls and we will put you in touch with a solicitor, an accountant and a barrister.
Court Process During Asset Forfeiture Proceedings
The first step is for the prosecution to inform the defence that POCA proceedings will follow. This is usually on the day of sentence for the main offence. A timetable will always be set which will follow the following rough guide:
- Section 18 statement (defence) – an affidavit from the defendant stating the total assets he holds;
- Section 16 response (prosecution) – the prosecution provide a report from a financial investigator stating what the benefit figure and available amount is;
- Section 17 (defence) – response from the defence arguing, usually, that either or both the benefit figures and available amount is too high.
- A directions hearing and then a final hearing if the case does not settle before then.
There are three important considerations to make during this. Firstly, is the case particular criminal conduct (that offence only), or general criminal conduct (lifestyle). Secondly, what is the available amount? And thirdly, negotiation of the lowest possible figure.
If you would like St Pauls Chambers to assist on such a matter, please get in touch. We will put you in touch will all the best solicitors and accountants and of course, we can provide you with one of our barristers in this field.
Restraining Orders
During asset forfeiture proceedings, the Drug Trafficking Act (DTA) and the Criminal Justice Act (CJA) can give the High Court jurisdiction to make a temporary restraining order (RO) of assets that are pending in the criminal proceedings. This includes property coming into his possession after the making of the order.
These are often required to be obtained at very short notice, and Barristers at St Pauls have extensive experience of dealing with these matters quickly.
The only limitation to the scope of a RO is that the Prosecutor must not seek a RO over assets greater in value than the amount by which the Defendant is alleged to have benefited from his crimes. Restraint under the Proceeds of Crime Act 2002 (POCA) applies to all criminal offences committed after 24th March 2003.
There is no distinction between drug trafficking and other criminal offences. Offences alleged to have been committed before that date will be dealt with under the DTA or CJA regime as applicable.
If you would like to instruct one of our forfeiture barristers on any matter concerning asset forfeiture laws or recovery, please contact the clerks.
Blog
The Latest Asset Forfeiture News and Cases
Follow our blog for further information on the latest Asset Forfeiture news and cases.
2y ago
Understanding Civil Forfeiture Laws
Civil asset forfeiture is defined as when personal assets are seized by law enforcement if there is reason to believe …
Understanding Civil Forfeiture Laws Read More »
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St Paul's Chambers
