Impact of budget cuts on confiscation proceedings

It’s been well publicised that the Government plans to cut £350m from the Legal Aid budget by 2015, the impact of which will be far reaching.

When a person has been convicted of a crime where they have gained a pecuniary advantage, the Crown is likely to proceed to confiscation under the Proceeds of Crime Act 2002 (POCA).

The intention is to deprive defendants of the benefit gained and to return this benefit to public funds.

The court must decide whether the defendant has a criminal lifestyle, and if so, it is permitted to largely assume that any income received and property held has been derived from general criminal activities.

In confiscation cases the burden of proof lies with the defendant. The prosecution’s case often results in double counting, the inclusion of legitimate monies and can lead to it seeking to confiscate monies far in excess of the benefit actually obtained.

Whilst the defendant can only be made to pay the assets that he has, it is commonly claimed that the he has hidden the benefit of his crime and his assets are assessed as considerably higher than those available for confiscation.

The defendant must prove that the amounts assessed by the prosecution are excessive and in many cases this proof can lie solely with the evidence of a forensic accountant.

In my experience it is becoming increasingly difficult for defendants to obtain the necessary funding from the LSC to instruct forensic accounting experts.

Reduced public funding is likely to result in a further reduction to the rates available to experts putting pressure on accountancy firms to reduce the scope of work, and/or will ultimately lead to many accountancy firms ceasing to do this type of work. This will reduce the choice that a solicitor has in instructing an expert and potentially result in a less robust defence.

Defendants that cannot benefit from quality expert accountancy evidence will have no alternative but to “find” the prosecution’s assessment of his available assets, or face up to ten years in prison.

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