17th January 2017
Proceeds of Crime Act
People and businesses can be deeply affected in a number of ways by the Restraint provisions of the Proceeds of Crime Act. These provisions can include:
- Freezing of assets at the very start of a criminal investigation (even before any criminal charges are brought). These applications are made by the prosecution without notice to the individual.
- Freezing of assets of an individual and/or connected third parties and/or companies. This can have an international application where relevant.
- Court ordered requests for the immediate disclosure of assets both in the UK and abroad
- Court ordered statements of truth requesting detailed information of all assets and transfers over many years
- Repatriation of assets abroad e.g. return of assets to the UK
- Appointment of Management Receivers to trace and recover assets
- Production Orders to obtain personal records
- Contempt proceedings for alleged non-cooperation
- Orders which seek to limit living expenses and business expenditure.
Our lawyers are highly specialised and have a vast amount of experience in advising on the following:
- Applications to discharge Restraint Orders
- Variation of restraint orders in order to release assets and/or permit the sale/acquisition of assets
- Releasing third party assets
The provisions of the Proceeds of Crime Act are extremely far reaching and can have a significant impact not only of the lives of individuals, but also connected third parties and corporate entities. Any questions about the impact that the Proceeds of Crime Act can have on you or your business should be directed to our Business Defence Team
In many cases once there is a conviction (after trial or a guilty plea) the prosecution will seek a Confiscation Order. This can often be more complicated and take more time than the substantive matter. A Confiscation Order does not always only affect the individual in question and we are regularly instructed to act for connected third parties.
Our specialist team including dedicated counsel has a wealth of experience of challenging every detail of confiscation proceedings from the initial application through to enforcement and applications to decrease the Available Amount.
We have acted in some of the most high profile and novel cases for many years now, including;
- Successfully arguing against confiscation proceedings even being initiated at the Crown Court
- Significantly reducing the Benefit Figures and Available Amounts that are argued by the prosecution
- Challenging Assumptions: including ‘criminal lifestyle’ and gifts (tainted, hidden, undervalue)
- Successfully challenging prosecution applications to reopen Confiscation Orders
- Successfully overturning Confiscation Orders in the Court of Appeal
- Overturning prosecution applications to invoke criminal lifestyle cases
In short, this area of law is extremely far reaching and technical in nature. Confiscation Orders have lifelong implications, therefore, if you have any queries then please do contact a member of the Business Defence team.
When a Confiscation Order is made in the Crown Court, the court will direct that this is paid within a specified time limit and set a period of imprisonment in default if this is not paid on time and in full. If a Confiscation Order has not been paid, in whole or in part, Enforcement Proceedings can be initiated in the Magistrate’s Court.
Our dedicated team of lawyers can assist in all aspects of Enforcement proceedings, including the following:
- Representation in the Magistrates Court
- Negotiating certificates of inadequacy/variations despite the findings made in the original hearings in the Crown Court
- Challenge appointment of Receivers to sell assets
- Challenge applications for the default sentence to be executed
- Applications to extend time to pay
- Negotiating additional time to pay even beyond the statutory time limits, having the effect of delaying enforcement proceedings
- Discharge and variation of confiscation orders
- Advice on appeal of the confiscation order
Acting for Third Parties
As discussed above, the imposition of Restraint and Confiscation Orders and Enforcement Proceedings can also impact on innocent third parties. This is an extremely specialised and complex area of law. Our lawyers are experienced in acting for third parties in all aspects of restraint and confiscation, including the following:
- Applying for assets/income to be released from Restraint
- Advising whether or not to provide witness statements in Confiscation proceedings
- Representing the third party in any enforcement proceedings
- Resisting applications for Enforcement Receivers against assets owned by third parties
We act for third parties in both the Crown Court and High Court
Cash Seizure Detention & Forfeiture
These powers affect anyone found with in excess of £1000 in cash. We can assist with:
- A Detention Order being made by the Magistrates’ Court to allow the police to hold it for up to two years whilst they investigate
- A Forfeiture Order by the magistrates court unless the individual can prove the cash was from a legitimate source and for a legitimate purpose
- This applies even if the cash belongs to someone else — and it is very difficult for that third party to be heard to get their cash back
- Recovery of costs issues
Civil recovery proceedings are usually brought when a prosecuting agency believes that an individual or company has assets that were acquired through criminal conduct but does not have enough evidence to bring a criminal case against them. However, civil recovery proceedings can also be brought even where a defendant has been previously acquitted in the Crown Court.
As these are civil proceedings there is no requirement for a jury to be satisfied beyond reasonable doubt but merely for the court to be satisfied on the balance of probabilities that the assets are the proceeds of crime. We can assist with the analysing the evidence, collating evidence to enable us to negotiate with the investigating authority. We have an extensive pool of experts to assist if required.
For more information and legal advice please contact us on 0845 894 1622 or email email@example.com
- Sundeep Soor — Head of Fraud & Tax
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