The Proceeds of Crime Act (POCA) is a complex, often misunderstood piece of legislation. If you’re staring down the barrel of the POCA, it’s understandable to feel anxious. Due to the challenging aspect of this particular order, it would likely be worthwhile to do two things:
- Research the details and intricacies of the Proceeds of Crime Act
- Contact a specialist who can clearly outline a plan on how best to act
Our Proceeds of Crime Act Explained Guide will discuss the meaning of POCA, as well as looking at the key features of the Proceeds of Crime Act, including when it was introduced and what happens for any cases that predate its introduction. Finally, we will detail exactly what Inquesta’s team of expert Forensic Accountant’s can do to assist in your case.
What is ‘Proceeds of Crime’?
Proceeds of crime refers to any monies or assets gained by a criminal as a direct result of their illicit activities. Should an offender be found to be guilty of a crime, authorities such as the Crown Prosecution Services (CPS) will gain the power to confiscate said funds.
The purpose of confiscating the ‘proceeds of crime’ is so criminals are unable to come out of prison and still directly benefit from their ill-gotten gains — therefore proving that ‘crime doesn’t pay’.
The CPS have a dedicated unit set up with the explicit purpose of recovering assets — CPS Proceeds of Crime unit.
What is the Proceeds of Crime Act?
The Proceeds of Crime Act (POCA) refers to the process of recovering and confiscating funds made from criminal activities. POCA sets out the formal legislature by which these assets are recovered — with criminal confiscation being the most common power utilised to this end.
Other methods of recovering funds set out in the act include:
- Civil recovery
- Seizure of cash
- Taxation powers
The Proceeds of Crime Act will apply only if a defendant’s conviction is brought before the Crown Court/is committed to the Court for sentencing, the prosecution formally requests that the Court begin the POCA process, or the courts independently deem that it is appropriate.
Should the defendant be convicted, the POCA allows the prosecution to ask the Court to make a ‘confiscation order’. This order is handed to anybody who is believed to have benefited financially from crime. A confiscation order requires the convicted defendant to pay back any money they are seen to have acquired as a direct result of committing their offences.
To determine exactly how much a defendant is required to pay back under their calculation, you must first work out the benefit figure and the available amount:
- Benefit Figure: The actual amount the defendant has gained as a direct result of their criminality. This must be as a result of an ‘acquisitive crime’ such as fraud or other financial crime.
- Available Amount: The available amount refers to how much the defendant has remaining at the time of their prosecution (what assets, funds, etc. they have left)
Once the recoverable amount is calculated using the aforementioned benefit figure and available amount, the confiscation order will be written up detailing exactly how much the defendant must pay back.
What Happens if you Can’t Pay a Confiscation Order?
If you are unable to pay a confiscation order by the due date, you may be able to apply for an extension. This extension will be for up to a maximum of six additional months. To qualify for an extension, you must be able to prove that you were unable to make the required payments due to ‘extraordinary circumstances’
Additionally, if you are genuinely unable to pay the amount set out in the order, you may be able to apply to the Court to have the confiscation order varied. This is an attempt to convince the Court that the initial amount set out in the confiscation order was excessive and should be reduced.
However, if you are ever seen to be capable of paying the order but do not, the case may be listed for enforcement. This means that the Court will enforce a default period of imprisonment that will have been ordered by the Crown Court Judge. If you ever find yourself at this point, it is vital that you seek specialist legal advice.
When Was The Proceeds of Crime Act Introduced?
The official title for the POCA is The Proceeds of Crime Act 2003. As the name suggests, the act itself was introduced on the 24th March 2003. Prior to the POCA, confiscation was governed by either the Drug Trafficking Act 1994 or the Criminal Justice Act 1997. Therefore, any offence committed prior to the introduction of the POCA is still governed under these Acts.
As a result, the Proceeds of Crime Act will only apply to any proceeds of crime-related offences that were committed on, or after, the 24th March 2003.
Can Proceeds of Crime Take Inheritance?
If you are seen by the court to have a ‘criminal lifestyle’ the Court may be able to take the position that any and all properties and high-value assets you possess were gained as a result of this lifestyle. In this situation, these assets, including inheritance or even lottery winnings, could be taken in order to pay the order.
Virtually any asset can be recovered as part of the POCA proceedings, this includes:
- Money
- Inheritance
- Properties, including your current residence
- Vehicles
- Other high value assets
Find Out What Our Experienced Forensic Accountants Can Do For You
Are you facing the potential ramifications that can come with the Proceeds of Crime Act 2003? POCA asset seizure can be a stressful thing to have awaiting you. As a result, you will want an experienced team to give you support and advice.
An expert Forensic Accountant will have all the knowledge and experience you need in order to ultimately get the best possible outcome for both you and your case. At Inquesta Forensic, we have an in-depth understanding of the POCA, and know how potentially stringent an initial POCA statement can be.
A member of our expert team of Forensic Accountants can attempt to lower this amount by proving that the amount the defendant benefited from was actually significantly lower than stated. To do this, our experts will utilise one of the greatest tools in the arsenal of a Forensic Accountant, their unmatched skill with numbers and data.
Inquesta boasts a highly experienced team of forensic accountants, all of whom have supported clients with cases covering a huge variety of different areas. We are perfectly placed to assist in your defence against confiscation proceedings, as well as negotiating a settlement, providing expert witness evidence, and more. Inquesta Forensic Accountants can provide an all-encompassing service designed to suit your unique circumstances.
If you think you need specialist advice for a Proceeds of Crime Act case, speak to a member of our dedicated team and book a completely free, no obligation consultation today.
