Asset Recovery
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What is Asset Recovery?
Asset recovery defines the process of tracing and recovering assets, such as property, vehicles or cash, that have been obtained through illegal activity. This should not be confused with those who have been the victims of fraud. This terms refers to the process of removing assets from those who have gained such assets from illegal activity. It is important for those who face recovery under the Proceeds of Crime Act 2002 to seek legal advice as soon as possible.
Asset Recovery
All asset recovery law is initiated under the Proceeds of Crime Act 2002 (POCA), which fall into three types:
- Confiscation proceedings
- Cash recovery 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.
Asset Recovery Law: Confiscation Proceedings
Confiscation proceedings 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.
Asset Recovery Law: Cash Recovery Proceedings
Civil recovery proceedings are taken in the High Court. It needs to be established that on the balance of probabilities, criminal 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.
Expert Asset Recovery Barristers
Experienced barristers at St Pauls can provide legal advice at every step of the way during any asset recovery law proceedings. If you need such legal advice, please get in touch.
Barristers
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Asset Recovery Law Barristers at St Pauls Chambers
St Pauls Chambers can advise both parties facing a freezing order as well as parties seeking to implement an injunction. To those facing a freezing order, St Pauls Chambers can advise as to disclosure (which is often onerous, given freezing orders are invariably sought on a without-notice basis), ancillary orders, compliance with orders and potential breaches of orders.
St Pauls Chambers can also advise on urgent applications and the common pitfalls to avoid, as well as on the implementation of orders (including who needs to be liaised with to ensure implantation is as effective as possible, such as banks and the Land Registry).
Counsel are often instructed to prepare effective, concise skeleton arguments and thereafter to attend the initial application at Court and, if necessary, a full hearing. These applications are usually made to a judge in the High Court or circuit judge in the County Court. Many cases are resolved through negotiation with the assistance of counsel, and we will advise on the best strategy to achieve this.
St Pauls Chambers acts for both applicants and respondents to freezing orders, and both individuals and businesses. We recognise the importance of speed and discreetness in such an area of law.
Proceeds of Crime
When defendants are convicted of an offence, either by pleading guilty or being convicted after a trial, they may be subject to a POCA application.
Any application falls into two parts;
- What has the defendant benefited from either for the offence or in the past from crime? (BENEFIT)
- What can he or she 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 or she 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 six 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 five 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 six years’ worth of receipts, claims, and property transactions, also proving to the court that they are legitimate.
How St Pauls Can Help
Barristers at St Pauls are highly experienced in the provisions of the Proceeds of Crime Act (POCA) and ready to defend and advise through the complexities of either proceedings or appeals. Contact us at St Pauls and we will put you in touch with a solicitor, an accountant and a barrister.
Court Process During Asset Recovery 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?
Thirdly, negotiation of the lowest possible figure.
Restraining Orders
During asset recovery proceedings, the Drug Trafficking Act (DTA), 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 the barristers on any matter concerning asset recovery/recovery, please contact the clerks.
