In recent times, there has been an upsurge in confiscation proceedings, and the chances are that a defendant who has received a financial benefit from their criminal activities will be subject to a confiscation order.
The Proceeds of Crime Act 2002, also known as POCA, sets out the legal framework for the confiscation of the proceeds of crime. The purposes of a confiscation order are to deprive defendants of the benefit gained, and to return this benefit to public funds.
Under the terms of POCA, 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 have been derived from general criminal activities.
In confiscation cases the burden of proof lies with the defendant. Often the case put forward by the prosecution lacks detail and is based on various and vague assumptions. It is vital that these assumptions are challenged, even if the source of monies is not always readily identifiable. 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 a defendant can only be made to pay the assets that he or she has, it is commonly claimed that he or she has hidden the benefit of their crime and their 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.
As forensic accountants, we understand the rules of POCA, analysing and untangling large sets of data, linking the flow of monies between various accounts and proving their source.
Our work on POCA cases normally involves checking receipts and expenditure to source documentation and identifying transactions that arise legitimately.