The Proceeds of Crime Act 2002 ("POCA") ensures that criminal conviction involving the proceeds of crime is quickly followed by an Application for Confiscation. The confiscation process requires the prosecution to establish on the balance of probability the benefit received by the defendant from both specific criminal indictments and an assumed criminal lifestyle.
Someone found guilty of a criminal offence may be called upon to demonstrate the source of funds used to:
Acquire any assets or savings held six years before the offence
Acquire any assets or savings or spent in the six years prior to the offence
Acquire any assets or savings or spent since the offence
In the event that the defence cannot prove these factors, the prosecution is likely to prevail as there is an assumption that these assets, savings and other expenditure represent the benefits from the defendant's criminal lifestyle.
More emphasis is also being placed upon the financial position of the defendant during the prosecution and it is now likely that the defence of the confiscation order may need to begin even before the trial. It is often the case that a failure to identify an issue before the resolution of the criminal trial can have adverse effects on any subsequent POCA hearing.
In many cases the defendants will have their assets restrained at the start of an investigation. Where this is the case, your client is likely to need urgent assistance from specialist accountants who are familiar with the Proceeds of Crime legislation.
Dains works with both the prosecution and the defence in order to ensure that confiscation statements remain grounded in commercial reality. We understand how the court seeks to deal with the assessment of benefit in practical terms and how the criminal lifestyle assumptions should be applied in practice. We recognise that without a robust and critical investigation of the prosecution's benefit figure, material errors can all too easily distort the defendant's actual financial position.
We are experienced at this type of financial review and over the years have developed a suitably efficient approach to confiscation assignments. This enables us to work effectively without compromising on the detailed analysis that is often indispensable to this exercise and permits us to identify the frequent double counts, arithmetical errors and inappropriate assumptions that can exist in the prosecution's Statement of Benefit, in addition to bringing our understanding of the latest case law.
We are accustomed to the process of obtaining Legal Aid Agency funding and, unlike many firms, are prepared to undertake assignments at the applicable rates.
Why would you need Dains?
You are a solicitor and need to appoint an accountancy firm to investigate the level of confiscation claimed for legal proceedings and act as an independent expert witness
You are a solicitor or barrister and need an accountancy firm to investigate and advise on the proceeds of a crime, with a view to acting as an independent expert witness
