Confiscation and Restraint

Government policy is that crime should not pay and the Proceeds of Crime Act 2002 (POCA) is designed to ensure that no offender benefits financially from their activities.

Under POCA, anyone convicted of a criminal offence in the Crown Court, or who is sent to the Crown Court for sentencing, may have a confiscation order made against them. In addition, the police and the prosecution have a number of powers to investigate financial affairs and to prevent the disposal of assets prior to a confiscation order being made. These include powers of search and seizure, powers to apply for production or disclosure orders and powers to freeze or restrain assets.

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Those convicted of, or sentenced for, a criminal offence in the Crown Court, may face confiscation of their assets under POCA.

By combining our legal expertise and experience with the advice of specialist accountants, we have successfully challenged and defended many POCA actions.

We can assist with applications to vary restraint orders and challenge prosecution evidence that a defendant has a ‘criminal lifestyle’ or has benefitted from criminal conduct. We also challenge prosecution evidence about the amount of benefit which is recoverable (including allegations that the defendant has ‘hidden assets’) and the defendant’s ability to satisfy any order made.

A selection of our confiscation and restraint cases

R v C

C was arrested in relation to the alleged importation of a tonne of cocaine from South America. On his arrest, approximately £2.5 million in cash was seized. C was acquitted of criminal offences and sought to recover the money, as it had been wrongly seized. He was then charged in relation to the importation of cannabis worth £14 million. As part of those proceedings, a High Court restraint order was placed on the seized money. The cannabis case collapsed, and the return of the money was again sought. The (then) Assets Recovery Agency sought to seize the money on the basis that it must have arisen from criminality. We produced defence evidence from overseas to show the seized funds. were the legitimate proceeds of international diamond dealing.

R v K

[Northampton CC]:

K became subject to POCA proceedings following his conviction for fraud. The prosecution argued that K had ‘benefitted’ by approximately £1.4 million and that his ‘available assets’ were in the region of £500,000. We successfully argued that the prosecution had failed to show that ‘lifestyle assumptions’ applied to the offence for which K was convicted. The POCA proceedings came to an end as a result.

R v P

[Leicester CC]:

POCA proceedings were instigated following P’s conviction for importation of large quantities of Class A drugs. We successfully argued that the prosecution should not have retrospective leave to extend the POCA timetable beyond the two-year statutory time limit. As a result, the prosecution was unable to proceed with confiscation proceedings.

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