Legal Representation at Confiscation Orders & Hearings

Will I lose everything I own?

This is a difficult question with no one size fits all answer, as each case is unique. Tragically, yes, in some situations, confiscation proceedings can indeed lead to the loss of everything you own. This stark reality underscores the critical importance of seeking specialised legal advice at the earliest possible stage.

Generally speaking, the Court has the authority to seek the confiscation of all or a portion of your assets, which are legally termed your ‘available assets’. These assets are then utilised to repay the ‘benefit of crime’, which is the financial gain the Court determines you obtained as a result of your criminal activity.

What is the benefit of crime and benefit figure?

The ‘benefit of crime,’ also known as the benefit figure, is calculated using various methods depending on the specifics of the case. It’s crucial to understand that the Court can pursue your ‘available assets’ to satisfy this benefit figure, regardless of whether those assets are directly linked to the criminal activity or were acquired through entirely honest and legitimate means. The fundamental principle is: ‘what assets do you possess that can be used to repay the calculated benefit figure?’ Consequently, ensuring the accuracy of the initial benefit figure is of paramount importance, as it dictates the extent of the assets that could be at risk of confiscation.

What are hidden assets?

If the amount the Prosecution claims you gained from your crime (the benefit of crime) differs from the value of the assets you have available to pay it back, the Prosecution may accuse you of concealing some of the proceeds of your criminal activity.

This accusation often arises if you cannot adequately explain the whereabouts of funds or if there is any indication of money being transferred to other individuals or overseas. Ultimately, it will be up to the Court to determine whether you have indeed hidden assets.

This creates a very challenging situation because it signifies that the Court does not believe you no longer possess the funds in question.

Demonstrating convincingly that you no longer possess the funds the Prosecution alleges you do is absolutely crucial and often requires significant effort. This may involve substantial work with your Solicitor to meticulously compile extensive documentation proving the legitimate dispersal of those funds. Failing to provide this level of detailed evidence could lead the Court to conclude that you still have access to substantial sums of money you simply do not possess.

Therefore, it is vital to instruct a solicitor who is not only experienced but also a genuine expert in navigating these complex confiscation issues. Without a robust and thoroughly evidenced defence, you could be held liable to pay the full value of your available assets, and, crucially, an additional sum representing the alleged hidden assets, even if those assets do not exist. This highlights the severe financial risks involved and the necessity of expert legal representation.

What is a tainted gift?

It is possible for the Prosecution to allege that a transaction that has already taken place constitutes a ‘tainted gift’. This typically arises when property or assets have been transferred to a spouse, another family member, or a friend.

If such a transfer has occurred, the Court may treat you as if you still possess that money or the equivalent value of the asset, even if you no longer have any legal ownership of it. In these situations, it becomes critically important to demonstrate that there was a genuine and legitimate reason for the transfer, and that it was not simply a tactic employed to conceal further assets from the Court. Providing clear and compelling evidence of the true purpose behind the transaction is key to defending against an allegation of a tainted gift.

If I go to prison for non payment of my confiscation order will the debt be wiped out?

If you are ordered to pay a sum of money in confiscation proceedings that sum remains owing until it is either paid or the order is varied to remove it. If, during the enforcement of the order you are sent to prison for a period of time in default of payment, then the debt, together with the interest accruing, is still payable on your release from prison.

What do I do if I can’t pay my confiscation order?

In the first instance the Court can be asked to extend the period of time in which you were given to pay to a maximum of six months. This is not an automatic right and you will have to show good reason for the extension and that you have made every effort to raise the funds in the required time.

What is a certificate of inadequacy?

A certificate of inadequacy relates to older confiscation orders before the Proceeds of Crime Act came in. This is where you could apply to have the confiscation order varied if you could show that there was no longer any prospect of raising the sum of money originally ordered. This may be where a property has dropped in value or other such circumstances.

This can still be done under the Proceeds of Crime Act (POCA) under S23.

Can I get legal aid for confiscation proceedings?

If you had the benefit of legal aid (a representation order) for the main Crown Court hearing then that same order will be valid for the confiscation proceedings. If you did not have legal aid then an application can be made. This will be granted if the Court believes it to be in the public interest. This test would usually be passed as your liberty will be at stake if you do not pay a confiscation order.

This will be means tested and you may have to pay a contribution to your representation. If the order is being enforced against you then you can apply to the Magistrates Court for a representation order again under the same tests but if you are over the financial threshold then you will not receive representation.

We would be happy to discuss all aspects of paying for your legal costs with you whether you want to have legal aid or pay privately.

Can the prosecution bring confiscation proceedings for regulatory offences?

Yes. Often people believe that offences such as trading standards offences, environment offences and other such regulatory matters will not be subject to the Proceeds of Crime Act confiscation regime.

They do attract confiscation and in these matters it is even more important to have a specialist POCA solicitor dealing with your case as there could be complex issues to deal with in order to protect either your assets or the assets of your company.

It is important that the solicitor dealing has good commercial knowledge in order to argue against what is known as ‘piercing the corporate veil’.

Issues will arise as to what the benefit of crime actually was and as to whether this is turnover figures or profit. There is considerable case law in this area all of which would need to be argued to ensure you are fully protected.

Can the Prosecution still come after legitimately gained assets that I may get long after the confiscation order has been paid?

Yes. Even after a confiscation order has been made and a sum paid, if the initially calculated ‘benefit of crime’ remains higher than the amount you have paid, the Prosecution retains the right to apply to the Court to re-evaluate your original ‘available assets’ and demand further funds. This pursuit can extend to any source of money you subsequently acquire, including inheritances or even lottery winnings.

Crucially, as long as the total ‘benefit of crime’ is determined to be greater than the total value of your ‘available assets’ at any point, the Prosecution can legally pursue any money you come into possession of, even if it is from legitimately earned income in the future. This highlights the long-term financial implications of a confiscation order and the importance of robust legal representation from the outset.