The Proceeds of Crime Act 2002 ("POCA") sets out the legislative scheme for the recovery of criminal assets with criminal confiscation being the most commonly used power. Confiscation occurs after a conviction has taken place. Other means of recovering the proceeds of crime which do not require a conviction are provided for in the Act, namely civil recovery, cash seizure and taxation powers. The aim of the asset recovery schemes in POCA is to deny criminals the use of their assets, recover the proceeds of crime and disrupt and deter criminality. The Act also provides for a number of investigative powers, such as search and seizure powers, and powers to apply for production orders and disclosure orders, and allows for the "restraint" or "freezing" of assets to prevent dissipation of assets prior to a confiscation order being made.
Our specialist team includes people affected by the seizure of goods or property under the Proceeds of Crime Act (POCA), and people on the fringes of investigation or proceedings under the Proceeds of Crime Act.
Our clients are generally family, friends and business associates of a person who is under investigation or prosecution.
Such third parties are generally affected by:
- Restraint Orders
- Enforcement of Confiscation Orders.
Specialist Restraint / Freezing Order Solicitors
Where a Restraint Order or Freezing Order is obtained by the prosecutor from the Court in relation to a person who is under investigation or is being prosecuted, that Restraint Order will immediately freeze that person’s assets.
It will often include assets which are owned by the person under investigation jointly with family members or business associates, or owned by companies connected with them.
We assist those third parties in negotiating the release of third party assets which might be affected by the Restraint Order.
Such third parties can apply to the Court for a variation or discharge of the Restraint Order, supported by evidence.
A restraint order has the effect of freezing property anywhere in the world that may be liable to confiscation following the trial and the making of a confiscation order. It may be made both against the defendant or person under investigation, and any other person holding realisable property. The object in each case is to strike a balance at the interlocutory stage between keeping the defendants assets available to satisfy any confiscation order which may be made in the event of conviction and meeting the defendants reasonable requirements in the meantime.
Confiscation Orders may be made in relation to a person after there has been a conviction.
The idea of a Confiscation Order is to enable the prosecutor to recover from a defendant the proceeds of criminal activity.The Confiscation Order will impose on the defendant an obligation to pay a sum of money that reflects the benefit the defendant is found by the Court to have received from his criminal conduct.The prosecutor may apply to the court to appoint an enforcement receiver, who is empowered to sell property of the defendant in order to satisfy the Confiscation Order.Once again, any innocent third parties (who may own property jointly or otherwise with the defendant) may apply to the Court regarding their interests in the property.The idea is to allow their ownership of the property to continue or to enable them to obtain their share of the sale proceeds.This involves demonstrating to the Court that those third parties did not acquire their interests in property owned jointly with the defendant, by way of a gift from the defendant or in any other way connected with the proceeds of crime.
The purpose of a confiscation order, namely to deprive the defendant of the proceeds of his or her crime, is only fulfilled once the order is paid. A confiscation order is a debt owed by the defendant to the Crown. The defendant can choose to pay the order voluntarily, but if he or she fails to pay the order, compulsory enforcement action can be taken.All domestic confiscation order payments, however enforced, go to HM Treasury after liquidators and receivers have been paid their fees and compensation has been paid to victims by the enforcing magistrates court.Restraint Orders do not come to an end when a confiscation order is made, but remain in force until the confiscation order is satisfied.The right to draw on restrained funds to meet general living expenses does not continue indefinitely but comes to an end when a confiscation order is made. If the defendant appeals against the order or his conviction, the right to draw on the restrained fund comes to an end when all domestic avenues of appeal have been exhausted.
If you are a party affected by a Confiscation Order or a restraint order in such a case it is best to take legal advice by the experts.