THE COURTS are increasingly hearing cases concerning confiscation of assets after conviction, usually where the defendant is said to have a criminal lifestyle under The Proceeds of Crime Act 2002 (PoCA 2002).
Following conviction, the court often considers confiscation orders where it must decide whether the defendant has a criminal lifestyle. This means that without your guidance, your client may not even know of the possibility of such action until the moment of conviction. Then, the prosecutor is likely to present a pre-prepared statement indicating if he believes that the defendant has a criminal lifestyle and his view as to how the defendant has benefited from the offences and, where a criminal lifestyle is asserted, his (assumed) general criminal conduct.
The defendant will be deemed to have a criminal lifestyle if, and only if, he has committed one of a wide range of offences, either on this or previous convictions. The defendant is then faced with proving which assets came from non-criminal activity – a highly complicated process, given the universal lack of paperwork in such cases.
The statutory assumptions
Where the defendant has a criminal lifestyle, four assumptions set out in the Act come into play. These effectively mean that all income, property acquired, and indeed expenditure since a defined ‘relevant’ day, are assumed to be as a result of criminal activity, and therefore liable to seizure. Importantly in this context, ‘property’ includes money as well as more tangible assets. However, this presumption must be put aside if, on the balance of probabilities, the assumption is shown to be incorrect or that there would be a serious risk of injustice if the assumption were made.
Practical effects
The problem comes when the prosecutor starts assuming that all assets relate to a criminal lifestyle.
Where a defendant has assets which can be shown not to have been derived from any criminal conduct, clearly they will not be taken into account in the calculation. However, they will be taken into account in arriving at his ‘available amount’ and will be liable to be confiscated in satisfaction of any confiscation order ultimately made at the conclusion of the proceedings.