Confiscation Proceedings Solicitors in Manchester
Stephen Lickrish & Associates are experts in relation to Confiscation and Restraint Orders and Proceedings. We benefit from having collected experience of one of the largest teams of Lawyers practicing in the field of criminal defence nationally.
Stephen Lickrish & Associates in particular have a wealth of experience in dealing with confiscation and restraint proceedings nationally. Many of these proceedings are dealt with as they arise whilst dealing with a client’s substantive matter or as a consequence to the outcome of a criminal trial whilst other matters are referred to us from outside the practice. Most of the cases that we deal with involve allegations where the “benefit figure” runs into millions of pounds but there have been a number of cases where the amounts involved have been considerably smaller.
What is a Confiscation Order ?
A Confiscation Order is an order by the court at the end of a confiscation hearing , usually made under The Proceeds of Crime Act 2002. It is designed to take the profit out of crime by allowing the crown courts to confiscate a defendant’s property found to be the proceeds of crime. The Act also allows a prosecuting authority to instigate restraint proceedings in which a person’s assets can be effectively frozen pending any subsequent confiscation hearing. This power is not merely confined to those arrested and charged; indeed, anyone who finds themselves a part of a criminal investigation and not yet under arrest may also be subjected to a restraint order, not to mention any third parties affected by the Order.
Confiscation proceedings will commence when someone has been convicted of an offence in the Crown Court or the matter has been committed to the Crown Court for sentence and the prosecutor asks the court, or the court itself, decides that it is appropriate to proceed to confiscation. If the accused is not convicted there can be no confiscation and any Restraint Order in place should be discharged immediately upon acquittal. During confiscation proceedings, the prosecutor is looking to seize the assets of the convicted whether or not those assets are the proceeds of crime. The whole purpose of the legislation is to deny the wrongdoer of his ill-gotten gains.
In making a Confiscation Order the court must decide whether you have a criminal lifestyle. Some offences are automatically considered lifestyle offences e.g. money laundering and drugs offences. If it is decided by the court that you have a criminal lifestyle then the court must make a number of assumptions: that property transferred, held and any expenditure within the previous six years was as a result of your criminal conduct.
Once confiscation proceedings start the prosecutor will serve a statement in which the alleged benefit figure and realisable amount will be outlined.
In calculating the benefit figure the prosecutor will take account of property transferred, held and any expenditure incurred during the course of the offending period (and the previous six years if you are deemed to have a criminal lifestyle). The assets which form the benefit figure may or may not be available for confiscation. It is up to the defence to show what is available.
The realisable amount is what assets are readily available for confiscation. This may be cash in bank accounts, motor cars or houses and jewellery etc. Often the realisable amount will be less than the benefit alleged. This is because assets that make up the benefit figure have been squandered.
A further complication to the calculation of the benefit and realisable amount figure is when the prosecution make an allegation of hidden assets or tainted gifts. A hidden asset, as the title suggests, is an asset that is hidden or disguised in some way to avoid detection . A tainted gift is a transfer of property at a value significantly less than the going market value.
If the defence team can show that the accused have no assets whatsoever, regardless of the amount of the benefit figure, the court is likely to make a nominal Confiscation Order in whichthe accused is ordered to pay a very small sum or nothing at all.
Once an Order has been made it becomes payable immediately. However, the court has the discretion to allow six months to pay with the option to allow a further six months to satisfy the Order if it remains unpaid. Therefore, potentially, a maximum of 12 months may be allowed to pay the Order. However, as mentioned above, this is at the discretion of the court.
The onus of proving that the client does not have what the prosecuting authority says he has is, unfortunately, on the client himself and usually this involves trying to prove a negative. That is why an analytical approach is needed to understand what can be at times, very complicated cases, so that a client’s instructions can be taken, properly understood and the client advised accordingly.
When we deal with a client’s confiscation we consider enlisting the specialist skills of forensic accountants from leading firms as well as other experts such as forensic computer analysts. Barristers play an important role too in the advice that they provide and of course at the confiscation hearing itself when they will represent a client’s interest in the Crown Court.
If you are subject to a restraint or confiscation order Stephen Lickrish & Associates can provide you with initial free legal advice, regardless of what stage your case is at. Please contact us.
Enforcement of a Confiscation Order
Whenever a Confiscation Order is made, a period is set within which this should be paid, known as Time To Pay or TTP. Often six months is the initial period allowed. However, it is possible to apply for an extension to allow up to a maximum of 12months to pay an Order.
Also, whenever a Confiscation Order is made a ‘sentence in default’ is applied – this means that should you fail to satisfy your Confiscation Order in full a custodial sentence is imposed.
The standard default sentences are set out below (s139 Powers of Criminal Courts (Sentencing) Act 2000:
|An amount not exceeding £200||7 days|
|An amount exceeding £200 but not exceeding £500||14 days|
|An amount exceeding £500 but not exceeding £1,000||28 days|
|An amount exceeding £1,000 but not exceeding £2,500||45 days|
|An amount exceeding £2,500 but not exceeding £5,000||3 months|
|An amount exceeding £5,000 but not exceeding £10,000||6 months|
|An amount exceeding £10,000 but not exceeding £20,000||12 months|
|An amount exceeding £20,000 but not exceeding £50,000||18 months|
|An amount exceeding £50,000 but not exceeding £100,000||2 years|
|An amount exceeding £100,000 but not exceeding £250,000||3 years|
|An amount exceeding £250,000 but not exceeding £1 million||5 years|
|An amount exceeding £1 million||10 years|
In cases where you are unable to pay the Confiscation Order, in full, it may be possible for you to apply for, what is commonly known as, a ‘Certificate of Inadequacy’. However, where such an application is rejected by the Court, or where you are unwilling to pay your Order the Prosecution and/or the Court’s Confiscation Unit will ask the Court to impose the default sentence period, this is known as enforcement.
Service of the default period does not expunge the Order – when you leave prison you will still need to pay your Confiscation Order. You should remember that once TTP has concluded interest starts to accrue, this is a very high rate of interest set by the Court (not the current Bank of England base rate for example). It is possible, albeit rare, for the Prosecution to complain to the Court of the unpaid interest and ask for another default sentence to be imposed.
Enforcement hearings are heard at the Magistrates’ Court. The Magistrates do not have the power to reduce the Confiscation Order, nor the default sentence. This is unless any monies have been paid off the Confiscation Order, in which case the sentences is reduced on a pro rata basis.
What can we do for you?
In some cases it is appropriate for a Receiver to be appointed to oversee the sale of assets, this can be particularly useful in the current economic climate when dealing with properties and high value goods such as cars and jewellery. When a Receiver is appointed it can be argued that the default sentence should not be imposed.
We would always advise our clients to pay as much as possible, as quickly as possible, off the Confiscation Order as this shows goodwill you your part.
We can explain to the Court how you have used your next endeavours to raise the funds to satisfy the Order, but that interest has not been shown, or that any offers received were undervalue meaning that any secured loans could not be repaid and therefore there would be no money left to pay off the Confiscation Order.
Depending upon the circumstances it may be possible to make an ‘Abuse of Process’ application which complains of delay on the part of the Prosecution. If successful a Confiscation Order can be entirely revoked.
This is a very specialist area of law and it is important that your legal team is well versed in the applicable law, and is able to apply good tactics to your case. For this reason we only instruct knowledgeable and experience Counsel to deal with these matter.
At Stephen Lickrish & Associates we have a wealth of experience in these matters and can help you to achieve the best possible outcome in these matters. If you, or anybody else you know, needs assistance or advice on this or any other legal matter please contact us.
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Confiscation Proceedings Solicitors in Manchester
Offering specialist advice and representation on cases of Confiscation Proceedings, Stephen Lickrish & Associates Solicitors in Manchester can help. Contact us today by calling us at 0161 237 1913 or on 0800 988 64 22 for 24-hour legal advice. Alternatively, contact us by filling out an enquiry form.