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The Proceeds of Crime Act 2002 (POCA) is a piece of legislation put into effect to prevent criminals from using their assets, help recover the proceeds of crime, and deter further criminal activity. If you have had actions taken against you under POCA and are now being required to repay sums of money, the impact on your personal and professional life can be severe. This is especially the case if you are not able, or no longer able, to pay the amount due in full. Fortunately, there are some limited occasions where you will be able to repay the amounts due in monthly instalments. In this article, we share more information on POCA and answer some of the most common questions around how to pay it, and what happens if you can’t.
As mentioned, POCA aims to prevent individuals and organisations (like companies or charities) from benefiting from the proceeds of criminal activity. The act is wide-ranging and includes provisions for the confiscation of assets that are the product of crime, the recovery of criminal assets, and measures to combat money laundering.
POCA gives the authorities power to seize, freeze, and confiscate assets. POCA is usually used in relation to very serious crimes like money laundering, organised crime (gangs, for example), and fraud. Under POCA, the authorities are able to confiscate any kind of property, whether tangible (physical cash, luxury clothing, cars, and even houses) or intangible (cash in a bank account).
Authorities can take various actions under the Act:
A court can issue a confiscation order following a conviction. This order requires the convicted person to pay a certain amount of money, which is considered to be the value of the benefit that they have received from their criminal conduct.
In cases where it is not possible to secure a criminal conviction, the authorities can use the civil recovery provisions of the Act to recover assets that are believed to be the proceeds of crime.
The Act allows law enforcement agencies to seize cash, which is suspected to be the proceeds of crime or intended to be used in unlawful conduct.
POCA makes it a crime to launder money, which includes concealing, disguising, converting, transferring, or removing criminal property from the UK. It also makes it an offence to enter into or become concerned in an arrangement that facilitates the acquisition, retention, use, or control of criminal property by or on behalf of another person.
POCA enables the authorities to investigate suspected money laundering and possession of criminal property. These include the power to apply for orders requiring individuals or organisations to provide information or to grant access to documents.
Demonstrably, POCA gives authorities a broad range of powers to tackle serious crime and it is not unusual for someone suspected of such crime to be subject to two or more of these measures simultaneously.
As it stands, £1,000 is the minimum amount of money that the police are able to seize under POCA. ‘Money’ is defined widely here and can include physical cash, cheques, bonds, certificates, and digital forms of money.
Police officers are instructed that they may initially seize cash and later seek further assistance from their local financial investigation unit to understand what other assets (clothes, watches, jewellery, cars, etc.) may be taken.
In order to make the initial confiscation, the police must be convinced that, ‘on the balance of probabilities that the cash was obtained through conduct of one of a number of kinds, each of which would have been criminal conduct.’
It is clear that POCA gives authorities wide powers, and that is reflected too in the wide range of assets that might be taken:
If you are concerned about seizure of any particular asset, including that which might be needed by your family (for example, your house), get in touch with a solicitor who has proven experience in handling POCA matters.
When an order is made by the courts, an assessment of your available assets will have been made to determine what funds you have available. In some instances, however, that amount is not quite accurate and that often is for circumstances out of your control. A court may have determined that you have a house available that is worth £200,000, for example, and you might actually only be able to sell it for £150,000 due to market conditions. If this is the case and you are unable to pay the full amount (either immediately or over the course of three months, as decided by the courts), there are some options available for alternative payment timelines.
In the first instance, the court may extend the deadline to pay by up to 6 months after the date of the confiscation order. This would be a further three months if the court originally granted three months to pay, instead of requiring immediate payment. An extension beyond six months is not possible.
During this time, you can pay amounts back monthly or you can pay in small lump sums or one large lump sum, as you are able.
This is one of the most common questions that solicitors get around confiscation money and other assets. Where does it all actually go?
Since POCA came into effect, all confiscated criminal assets are paid into the UK’s Consolidated Fund. Per the government website, 50% of the value of the recovered assets is then allocated for use under the Asset Recovery Incentivisation Scheme (ARIS) and is distributed to frontline agencies. These sums are broadly divided between investigators, prosecutors, and enforcing authorities, like the police.
POCA does not provide any specific guidelines for how ARIS amounts must be spent, but politicians have long argued that some of the money should be used for asset recovery work, crime reduction projects, and community projects.
The remaining 50% of the confiscated funds is kept by the Home Office to cover its expenses.
In short, yes. It is possible for both the defendant and the prosecution to appeal any order made by the court. Grounds for appeal include:
A point of law claim, where the court has made a legal mistake in making the order
A factual error, where the court has made a mistake about the facts (for example, overestimating the value of the defendant’s assets)
Proportionality, where it is argued that the order is disproportionate to the crime committed
Any appeal must be lodged within 28 days of the order being made, and it must go to the Court of Appeal. There are some occasions where this time limit can be extended, but because they are so complex, it is best to ask a solicitor for their opinion on whether such an extension might be possible.
In the most serious of point of law claims where the matter affects the general public, a further appeal may be made to the Supreme Court.
While legal aid is generally available for individuals facing POCA proceedings, eligibility criteria for legal aid must still be met. Eligibility is determined by looking at a number of factors, including the individual’s financial circumstances and the seriousness of the case.
If legal aid is granted, it can cover various stages of the legal process, including initial advice from a solicitor, representation costs of a barrister, and support with formulating appeals. If you are not eligible for legal aid, you will need to pay for legal advice and representation privately (though remember most good solicitors offer a free initial consultation that can help you better understand your options).
If you are facing a confiscation order or are already trying to manage the consequences and repayment of one, we understand just how stressful and upsetting this experience can be. To start getting matters resolved, get in touch with the experts at Stuart Miller Solicitors. Our team has years of experience managing POCA legal matters and can advise you on all issues, including how to protect your assets from confiscation as best as possible. For a free consultation to better understand your next move, reach out to us today.
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We will take early action to end proceedings as soon as it is practically and legally possible to do so.
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