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Proceeds of Crime Act and Asset Recovery
If you are looking for legal advice or representation relating to the Proceeds of Crime Act, asset recovery or asset confiscation, our specialist solicitors are well placed to help you achieve the outcome you want.
The Proceeds of Crime Act (POCA) solicitors at JMW are friendly and helpful and will be happy to explain POCA legislation in more detail. We are experienced in helping businesses and fellow solicitors protect themselves from spurious allegations, confiscation of assets and breaches of the POCA.
The Proceeds of Crime Act (POCA) 2002 criminalises the use of any property, such as money, shares and goods, that has been obtained through criminal conduct. Examples include tax evasion, bribery and any benefits received as a direct result of a business failing to comply with UK law.
If the prosecuting authorities reasonably suspect that cash discovered during a search is to be used for unlawful conduct or is the product of criminal activity, the cash can be seized pending an investigation and a possible application for forfeiture.
In order to secure your cash back, it must be proven using the balance of probabilities that the money is not going to be used for criminal activity, and that it was not procured through illegal activity.
Early advice is absolutely vital in cash seizure cases and we often represent clients in two aspects of these proceedings:
- Applications for the return of cash on behalf of individuals from whom the cash was seized
- Intervening on behalf of individuals or corporate clients claiming ownership of cash seized from another individual or associated premises
Examples of cases in which we have acted include:
- A case where £8,000 was seized from a magistrate. The money was returned once we made representations at the investigation stage
- Money was seized from a driver who had been given £14,000 as petty cash to look after overseas business clients. Our team was able to get the cash back without the need to defend an application for forfeiture
- Officers from the Asset Recovery Agency raided our client’s business and seized computers, documents and a large amount of cash. We successfully challenged the applicant’s forensic evidence regarding traces of drugs on the money and produced expert evidence regarding the need for this level of cash in the business. The money was returned and no charges bought
Civil recovery proceedings are often pursued when the prosecution do not have sufficient evidence to bring a criminal case but believes that an individual or company has assets that were acquired through criminal activity.
We can assist two different types of client:
- Individuals or corporate clients facing civil recovery proceedings
- Complainants seeking the recovery of assets by using the civil recovery process
During criminal proceedings the prosecution will sometimes put forward an application for the confiscation of assets under the Proceeds of Crime Act 2002, the Criminal Justice Act 1988 or relevant drug laws.
We act on behalf of both individuals and business clients who have had their assets confiscated or are facing confiscation proceedings. A heavy burden of proof is placed upon a defendant and discharging that burden requires careful advice.
The defence of most confiscation proceedings begins with the preparation of a statement on behalf of the client. This document will set out the following:
- The identification of assets owned or controlled by the client
- The location of those assets
- If possible, the value of each asset
The prosecution respond by alleging the value of the criminal benefit and will often challenge the ownership or value of the assets. The defence response to those allegations can be a very complex piece of work. We can also bring litigation challenging the ownership of assets, which often involves the use of comprehensive evidence from forensic accountants or other lawyers. If your case involves hidden assets, it is vital that you work with a highly experienced and knowledgeable lawyer.
Click here for a summary of the law on hidden assets.
Acting in confiscation proceedings often involves proving a legitimate audit trail, securing assets where they have not already been restrained or frozen, and sometimes arranging for the repatriation of assets to the UK.
Our skills in this area of law are comprehensive and we can also act for spouses or partners who need to intervene in their partner’s confiscation proceedings, within the wider context of a matrimonial case.
Once a confiscation order has been made, defendants have a set time frame in which to pay - generally a maximum of six months after an order has been made.
We regularly act for defendants who have had payment demands made upon them. We can often apply for further time for payment to be made, and timing is absolutely crucial - failure to do this can lead to a default prison sentence for non-payment being applied.
Defending confiscation enforcement proceedings is very complex as it can often link to other areas of legislation. Cases can involve people, assets or companies across the UK and other jurisdictions. All of our solicitors appreciate this and have the comprehensive knowledge to tackle even the most intricate proceedings.
If the relevant grounds exist and there is a real risk that recoverable property will be dissipated, the authorities will often apply for a restraint or freezing order. This legislation, commonly applied by the CPS and Serious Fraud Office, can leave individuals unable to access their own cash to pay for a legal defence.
These orders can be crippling for businesses and individuals, but applications can be made to release funds to ensure a business or household is kept running.
We have broad experience in dealing with restraint proceedings and freezing orders. We have worked with individuals and businesses with assets totalling millions of pounds, in both the UK and overseas.
Our services include:
- Applying for the release of restrained funds to maintain income
- Assistance with repatriation of assets
- Payment of specific debts
- Dealing with management receivers appointed to preserve restrained assets
- Applying for variation and discharge of restraint or freezing orders
- Advice on corporate recovery or liquidation
- Preparing statements required by the court
Evan Wright discusses issues relating to the recovery of frozen assets:
What You Need to Know: Unexplained Wealth Orders
Unexplained Wealth Orders (UWO) came into force in January 2018 to help authorities identify and seize property suspected to have been bought by laundered criminal funds, most commonly from foreign sources.
Find out here in our factsheet about what is entailed in a UWO and what could happen if you were to become subject to one.
As proceeds of crime act specialists, the JMW business crime team:
- Is Solicitors' Regulation Authority (SRA) approved to offer money laundering compliance training to businesses and solicitors
- Has systems in place that will protect you from money laundering accusations
- Has expertise in dealing with white collar crime and POCA cases
- Can handle the sale of any asset, including a business/company as a going concern
- Has specialist conveyancers and corporate lawyers who have dealt with the sale of restrained assets
- Has facilitated the sale of assets from domestic properties to multi-million pound companies
- Understands the issues and the procedural requirements
- Has a good reputation and relationship with the other interested agencies
If restraint or confiscation orders have been made, our experienced POCA solicitors will guide you through the sale of the assets in question, and will be available to provide legal advice and guidance throughout the legal process.