Proceeds of Crime Act 2002 (POCA)

The Proceeds of Crime Act is an intricate piece of legislature, which can have far reaching consequences. Such inquiries often take months to reach a resolution, therefore it is extremely important to take advantage of our extensive experience.

At Platts Solicitors we are experts in dealing with ‘Proceeds of Crime Act’ whether an individual or a business is charged with such an offence. Professional advice is needed as authorities have extensive powers to appropriate assets such as money, property, or goods and recover proceeds which are suspected to have been obtained through criminal means.  It is the responsibility of the accused to provide proof of legitimacy of the assets.  Therefore, our lawyers will provide technical knowledge and experience needed to achieve the best outcome.

The Proceeds of Crime Act has been designed to take the profit out of crime, the two main aims are as follows:

• To prevent money laundering activities
• To deprive criminals of the proceeds of their criminal activity.

The Act allows enforcement agencies investigative powers such as search, seizure, restraint and freezing of assets, and the legislative framework for the recovery of criminal assets.

Money Laundering under sections 327-329 of POCA makes it an offence to deal with the proceeds, or ‘benefit’, from crime in 3 broad areas:

• Concealing criminal property
• Entering into an arrangement to keep, use or control criminal property.
• Possession of criminal property.

POCA is frequently used by the police and non-police agencies in order to recover criminal property in a wide variety of proceedings, which range from, tax evasion, benefit fraud, bribery, copyright infringement, money laundering, and rogue trading.

In order to prove that any property is “criminal property”, the prosecutor must demonstrate the property constitutes or represents benefit from crime , either partially or in whole, directly or indirectly; and that the defendant is aware or indeed suspects that it represents such a benefit.

The proceeds of crime are recovered by, Restraint and freezing orders, Confiscation orders, Civil recovery, Cash seizures, Unexplained Wealth Orders (UWO’s)

Restraint and Freezing Orders

In order to prevent assets being disposed of, sold or de-valued prior to a conviction ‘restraint orders’ are used. These orders  ‘freeze’ or preserve the property and bank accounts of a suspect or  indeed any other person holding realisable property or defendant at any time, this can be from the start of an investigation until its conclusion to prevent the assets being sold or de-valued prior to a conviction.

Confiscation Orders

Confiscation orders are made against a convicted defendant. A confiscation order requires the payment of a court determined amount to be paid by the defendant.  

Civil Recovery

A civil recovery order enables assets to be recovered without any criminal conviction if it is proved on a balance of probability that the assets were acquired through unlawful means.

Cash Seizures

Cash seizures regularly occur during a stop and search by the police, at an international border or at business premises in which the police or customs officer suspects that the money was acquired or intended for criminal activity.

Unexplained Wealth Orders (UWO’s)

The High Court may on request of an enforcement agency, make an unexplained wealth order (UWO) in respect of any property under suspicion without proving criminality. Unexplained Wealth Orders (UWO) require respondents to clarify how the asset was acquired, enabling authorities to identify and seize property suspected to have been purchased through laundered criminal funds within the county of origin or overseas. If an explanation is not provided, or the evidence offered is unsatisfactory, the asset will be deemed to be ‘recoverable property’ for the purposes of a civil recovery order under POCA.

What is a benefit figure?

In order to recover the proceeds of crime, the courts will calculate a figure that represents the financial benefits of the crime committed. The benefit figure is not the actual money or property which is held or gained from the criminal conduct, but it is the money or property that passes through the defendant. This can be above the actual amount that the defendant profited from their criminal activity.

Under Schedule 2 of POCA, if a defendant has benefitted from £5,000 or more over the course of 6 months or more, they are said to have committed a lifestyle offence. In those circumstances the Crown has the power to significantly increase the benefit figure and the Court is able to assume that any assets brought or transferred to the defendant within the last 6 years was obtained as a result of the crime, and the value of these assets will be added to the benefit figure. The burden of proof is on the defendant to show that a source of income was legitimate.

Regulated Sector Offences

 Regulated Sector Offences refers to those carrying out a regulated business in which suspicious activity of money laundering is discovered in the conduct of their business even when the person fails to suspect money laundering when they should have done. It is an offence: having suspected or acquired knowledge of money laundering to fail to make an external disclosure or to inform a person of a money laundering investigation is being undertaken and if a Suspicious Activity Report (SAR) has been submitted.

Prosecution Directors

Platts Solicitors have successfully and regularly advise directors when they have been accused of a criminal offences in order to protect them, their businesses and reputations. Our experienced and dedicated legal team will work with you in order to achieve the best results by assessing and reviewing your operations. We work hard to defend you against current investigations which will protect you against further allegations.

Company directors can be subject to many areas of irregularity and prosecution that can emerge as a result of Police and Regulatory body investigations. This can result in sanctions, criminal liability, or disqualification. In order for personal criminal liability to be proven against a director either consent, connivance or negligence must be established. On conviction this carries a sentence of up to 2 years imprisonment.

• Consent

The director must have consented to the crime, in this instance it must be established that there was knowledge and an agreement to the facts which amount to the offence.

• Connivance

The director knowingly turns a blind eye to the criminal activity in question, this is when the director is not actively encouraging what happens but nevertheless lets such activity continue, without disclosing it to anyone.

• Negligence

The Companies Act 2006 contends that “a director must exercise reasonable care, skill and diligence” in running an organisation. Failure to do so may be considered to be negligent and can result in the director being disqualified and suffering personal liability as a consequence. At Platts Solicitors our priority is to provide the highest standard of client care from the moment that we are instructed in order to protect you and your business as the penalties can be severe.

Contact  

For expert advice on all criminal-related matters, contact our Manchester criminal lawyers online or by phone on 0161 834 3114 and Office out of hours number 07977 402020