How We Can Assist In Cases Of Confiscation, Asset Seizure And Unexplained Wealth Orders
If you are faced with confiscation proceedings you require a robust defence. You may have been found guilty of some qualifying crime, but have not enjoyed a long and fruitful life of crime. You may have made your money legitimately abroad, but have not retained the historical records explaining this.
In short, you may be facing the loss of hard earned legitimate income as a result of a modest crime or lack of accounting records. The authorities have a hard job to do, and will not accept explanations without supporting evidence.
The Main Tool In Defending Confiscation Proceedings
We typically deal with a dozen or more confiscation or asset seizure cases every year, and the matters involving fraud that we deal with may potentially lead to Proceeds of Crime applications in due course. In so many of these cases we see the defendants vehemently denying the level of benefit they have received that is shown in the S16 Statement of Information or the application for asset seizure, but are unable to convince the investigating authorities.
This is why the forensic accounting response of an expert accounting witness is often needed, sometimes to simply present the position in an independent, credible and succinct way.
Start With The Particular Criminal Benefit
Very often we hear counsel for the defence say “…we have to accept the figure for benefit mentioned by the judge when he summed up the predicate case…”
This is not necessarily so. Common sense must prevail and very often the levels of obvious benefit gained by a defendant are inflated and a more reasonable figure should be proposed. It must be remembered that the definition of “criminal benefit” within the Proceeds of Crime Act (POCA) 2002 (and the precidents that have resulted) do not equate to “profitable gains”.
Thus when an expert values the quantity of drugs seized at street prices, this does not take into account the cost of acquisition and distribution. It is not the money illegally obtained by the defendant available to spend.
Very often, the logic behind the quanta of the claims being made by the Crown in the predicate case are flawed, but the defendant is guilty and pleads accordingly. The level of criminal activity is never properly established but assumptions are inappropriately applied to Particular Criminal Benefit.
Then: Challenge The Lifestyle Assumptions
The assumptions that the Crown can make according to POCA 2002 have been hailed as “draconian” by many commentators for good reason. They allow every transfer of wealth or asset obtained by a defendant to be considered to be the fruits of criminal activity.
The logic behind the assumptions is sound, and it is a good thing that those who live a luxurious lifestyle without seeming to have any form of legitimate income are challenged. However, there is scope for the innocent (or relatively innocent) to lose much more than they benefited from their crimes. In making assumptions mistakes are also made, and the Crown’s financial investigators commonly double count transactions, include gross values of property without considering mortgages and fail to trace obvious legitimate income to supporting documentation.
We accept that preparation of S16 Statements of Information can be difficult (we know because we are called upon to assist with their preparation) and that making challenges may be somewhat easier – but there is a need for all financial claims within the very confrontational arena of criminal dispute to be independently and expertly scrutinised to ensure a fair result.
And There Is More: Realisable Assets
The trick seems to be to ensure that the S16 benefit can be satisfied by the amount available to the defendant – all their realisable assets. Sometimes a modest benefit set at a fair level can be settled, perhaps by selling a property or obtaining a loan from family and friends. In this case, the family home is retained, family jewelery does not need to be sold and the defendant can begin to rebuild his or her life.
Other times a massive benefit resulting from long running illegal activity overshadows the defendant’s assets and there is no hope of settling it. This can happen where it is more than just “profits” of crime that have been assessed. In this case the realisable amount will be set to wipe out all the defendant’s posessions, inlcuding pension and savings. This makes it all the harder to start rebuilding any sort of normal life.
But matters can be worse! It is open to the Crown to suggest that a defendant has hidden assets or gifted wealth to the safe keeping of friends. This may have happened, but very often any disappearing wealth may well have…just disappeared! Regular withdrawals of cash may have been squandered gambling and not secreted away in a secret bank account. How do you prove a negative…that you don’t possess something you dont have?
Chasing Hidden Assets And Tainted Gifts In Confiscation Proceedings
Mark Jenner & Co Limited are often asked to respond to Proceeds of Crime Confiscation Proceedings ensuing after the conviction in criminal cases. We normally consider every aspect of the S16 Statement of Information.
Sometimes it is not possible to present a definitive value for a person’s wealth, often records have not been kept or (as in the case of hidden assets noted above) it is impossible to prove that you don’t have something. In these cases it is essential that all reasonable explanations are considered and presented together with as much sensible criticism of the assumptions as possible. This then forces common sense to prevail during the legal arguments between prosecution and defence counsel to thrash out a fair deal leading to an appropriate order being made by the court.