As Oxford based solicitors, we are well located to help an array of clients across the UK. SMQ Legal team members have worked on various type of POCA cases. Here Shelby gives an overview as to how the Proceeds of Crime Act 2002 works.
The Proceeds of Crime Act 2002 (POCA) came into play on 24th July 2002 with the intention of recovering funds from those who have financially gained from illegal activity such as Embezzlement or Drug offences. However, where is the line drawn? Where is the line between recovery of funds as a form of punishment and leaving said person(s) with no means to continue life after a sentence is served?
It is not a secret that many offenders offend for the reason of financial gain, whether this be because they are of low means or because they feel that they have no choice. Section 7 (1) of POCA states that:
‘The recoverable amount for the purposes of section 6 is an amount equal to the defendant’s benefit from the conduct concerned’ (Legislation.gov.uk, 2002)
However, if a person has offended in order to gain financially and then been issued a custodial sentence, what are they left with when they are released? Furthermore, what happens in cases where a person does not have the money that they have gained? Do they give up their home? Their vehicle?
In order to ascertain the total due to the Crown it is important that the Defence review all documentation and evidence in the criminal proceedings. The Defendant first provides his/her financial information in compliance with Section 18. The Prosecution then replies with what is known as the Section 16 statement where it is outlined the benefit amount, which is the financial gain from the total criminal activity, and the available amount which is the amount of money available to the Defendant to pay. The Defendant responds to this with a Section 17 statement addressing what is and is not accepted providing any evidence that is proposed to be relied on. If from here both parties are unable reach a negotiated settlement it will up to the court to decide what amount the Defendant must repay, how and when.
The finding that is the most damaging to deal with is if there are ‘hidden assets’. This is when, for example, an identifiable asset is untraced. It could be that money obtained from a fraud or theft cannot be traced or has been transferred to a different jurisdiction. The Defendant will then be required to account for its whereabouts.
Another situation when hidden assets may arise is where the only logical conclusion that can be drawn is that the Defendant has hidden the money, for example where there is no legitimate income but the Defendant is living a lavish lifestyle. This is particularly common in Drugs cases.
Whilst normally the Prosecution must prove its case against the Defendant so that the jury can be sure of his/her guilt, in POCA proceedings, the defendant must prove that he/she is worth less than the figure representing ‘criminal benefit’ on the balance of probabilities, that means that is more likely than not that the Defendant is worth less than the ‘criminal benefit’ figure.
This is where SMQ Legal’s expertise comes in and can assist clients with all POCA matters as it has experience in all areas that arise under POCA.
By Shelby Keppel
Legislation.Gov.UK, Proceeds of Crime Act 2002. 2002. [Online] Available via: https://www.legislation.gov.uk/ukpga/2002/29/section/7 [Last Accessed 14th September 2020]