Overview

Enforcement authorities are making increased use of the Proceeds of Crime Act (POCA) in order to recover criminal property. This can be done by way of cash seizure, civil recovery, or confiscation proceedings.

These can be freestanding applications, or, particularly in the case of confiscation proceedings can follow a criminal prosecution, where it is alleged that benefit has been gained from criminal conduct. Enforcement authorities have very wide-ranging powers and can freeze assets and bank accounts, including, sometimes, those of domestic and business partners.

This is a complex area of law, and advice should be sought as early as possible in order to try to mitigate the potentially far-reaching consequences of confiscation proceedings. Unlike other areas of the criminal law, the Proceeds of Crime Act requires the accused person to prove the legitimacy of the funds and assets they hold. Proceeds of Crime Act investigations can take many months, and sometimes longer, to resolve.

Cash seizure
 

A prosecuting authority may make a cash seizure application where it is reasonably suspected that cash discovered during a search is either from criminal conduct, or is to be used for illegal purposes. That cash can be returned to the suspect, but it must be shown (on the balance of probabilities) either that the cash is not from criminal conduct, or is not going to be used for illegal purposes.

Civil recovery
 

Civil Recovery proceedings can be instituted by the investigating authority where it considers that assets have been obtained through criminal conduct. However, there may not be sufficient evidence to bring criminal proceedings.

Confiscation Orders
 

There are many instances where an enforcement authority may utilise confiscation proceedings. There will invariably be a financial element to the offences under consideration, but POCA is more commonly utilised in cases where there is a fraudulent element. This includes:

  • fraud
  • taxation
  • fraudulent trading
  • money laundering
  • bribery.

A prosecuting authority may make a cash seizure application where it is reasonably suspected that cash discovered during a search is either from criminal conduct, or is to be used for illegal purposes. That cash can be returned to the suspect, but it must be shown (on the balance of probabilities) either that the cash is not from criminal conduct, or is not going to be used for illegal purposes.

Civil Recovery proceedings can be instituted by the investigating authority where it considers that assets have been obtained through criminal conduct. However, there may not be sufficient evidence to bring criminal proceedings.

There are many instances where an enforcement authority may utilise confiscation proceedings. There will invariably be a financial element to the offences under consideration, but POCA is more commonly utilised in cases where there is a fraudulent element. This includes:

  • fraud
  • taxation
  • fraudulent trading
  • money laundering
  • bribery.

The use of POCA is not limited to police prosecutions. Many non-police agencies, including Government departments and Local Authorities are now making regular use of POCA. They particularly feature where proceedings are being pursued for rogue trading, usually by a local Trading Standards Department for breaches of consumer protection legislation or for fraud. They also feature in cases involving breaches of trade marks or copyright infringement. Non-police agencies who investigate social security fraud also sometimes make use of POCA to recover the sums of welfare benefits overpaid.

 

How can we help?

Our team is highly experienced in this field, having acted for both the prosecution and defence, where POCA applications are being pursued. This has given us valuable insight into both perspectives and the particular objectives that both parties have where POCA applications are made.

We have acted in cases with a POCA element in such diverse matters, such as food fraud and breaches of consumer protection legislation. Our team members have acted in cases ranging from low-level benefit fraud, with smaller sums at stake through to six and seven figure assessments of criminal benefit.

We also act for parties who may not have taken part in any criminal activity, but who may nevertheless be affected by a POCA application. This can include the spouse or partner of an individual subject to POCA proceedings, where it may be necessary to make an application to intervene in those proceedings in order to safeguard the spouse or partner’s interest.

Whatever is at stake, it is vitally important that you seek specialist assistance in this field; contact us now.

Key contact

Justin has extensive experience in Proceeds of Crime Act proceedings, for both prosecution and defence, and has successfully represented clients at a number of fully contested Confiscation proceedings.

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