What is Proceeds of Crime?

The Proceeds of Crime Act 2002 creates a single model for Confiscation following conviction in criminal cases. The Act came into force on the 24th March, 2003. The Act is severe. It penalises Defendants for criminal conduct which is in fact unproven. It can make assumptions of fact and reverse the burden so it falls upon the Defendant, in effect, to prove otherwise.

As a result of this Act, the Crown Court is the Court where confiscation proceedings under the Act take place. The Act creates a single, unified system for confiscation following a criminal conviction. If the Prosecution apply for a hearing, then an enquiry into the matter is mandatory i.e. compulsory. It also introduces the concept of “criminal lifestyle.” Which triggers an unlimited review of the proceeds of the Defendant’s “general criminal conduct.”

The term “confiscation order” is in fact rather misleading. The Court do not confiscate property but rather, they require the Defendant to pay over a sum of money. This sum is referred to as the “recoverable amount.” This will either be the full amount of what the court has found to be his “benefit” from his “criminal conduct” or the value of all the Defendant’s remaining assets, referred to as the “available amount,” if that can be proven to be less.

An Order may be made only in the Crown court against anyone convicted of an indictable offence or committed by the Magistrates.

When can I sue?

You are able to sue when your advisor has made a mistake which was in breach of his duty to you, and as a result of which you have sustained a loss. In other words, even if the surveyor made a mistake, but you cannot prove a loss of some sort, be it directly or indirectly financial, you have no claim to bring. If the surveyor can correct the position or make good the loss, then generally it will be his duty to do so. He has to “mitigate the loss” as indeed you must do as well. There are therefore, as with all negligence claims, three elements to your Claim. An established duty of care (which your surveyor will have towards you); a breach of that duty, and lastly a loss caused by his negligence. The Surveyor has a contractual liability towards you (by virtue of your contract with him) and a duty of care in negligence.

What happens when?

The Prosecution firstly ask for an enquiry or the Court can of its own volition do so when it believes it is appropriate. The Judge then decides whether the Defendant has a “criminal lifestyle” which is dependent upon the nature of the offence or offences of which the Defendant is convicted in these or previous proceedings. The Judge must then decide whether the Defendant has benefited from criminal conduct. In the event that that Defendant has been found to have a criminal lifestyle, the Court must decide whether the Defendant has benefited from his “general criminal conduct”. If, however, the Defendant does not have a criminal lifestyle, the Court must decide whether he has benefited from his “particular criminal conduct.”

Next the Judge decides what is the gross market value of the proceeds or benefit, referred to as the “recoverable amount.” Finally, the Judge makes an Order in that sum, unless the Defendant can prove that the value of all his assets (“the available amount”) is less than the value of the benefit.

What is the burden of proof?

The burden of proving that the Defendant has benefitted from crime, and the amount of the benefit is borne by the Prosecution. The balance of proof that of “the balance of probabilities.” This is a particular onus on the Prosecution but the onus shifts in the following way. There are, in certain circumstances, Assumptions made. The first assumption is that any property transferred to the Defendant within the six year period preceding the start of the proceedings was obtained as a result of his general criminal conduct. The second assumption is that property held by the Defendant at any time after conviction was obtained as a result of his general criminal conduct. The penultimate assumption concerns expenditure at any time after the start of the six year period, and finally the assumption that property held is held by the Defendant alone. These assumptions are very onerous as the burden has in effect shifted to the Defendant to prove otherwise. This is not always easy, particularly with the passage of time. The Defendant must prove otherwise “on the balance of probabilities.

What is criminal lifestyle?

If the Defendant has been found guilty of certain offences, it will be concluded that he has a “criminal lifestyle.” This then means it will be assumed that in the previous six years, all income is assumed to be from criminal conduct, unless proved otherwise. The offences which trigger this include drug trafficking offences; arms trafficking; money laundering; brothel keeping. This is not an exhaustive list. Additionally, the Defendant is exposed in the same way if an offence has been committed over a period of at least six months, or been found guilty of a certain number of offences. Since the introduction of the Act.