Restraint and Confiscation
Restraint and Confiscation
In a number of investigations, the prosecuting authorities seek a Restraint Order from the Court pre-charge. This will be obtained at a hearing not attended by the suspect and served on the individual concerned often at the time of their arrest for the offences in question. The Court can only grant a Restraint Order where it is satisfied that certain conditions as set out in s40 of the Proceeds of Crime Act 2002 (“POCA”) apply. The Restraint Order limits the use of the individual’s assets during the course of the investigation and any subsequent criminal proceedings. Often the order requires disclosure to be made of the individual’s assets in the UK and abroad.
Anyone served with a Restraint Order should seek immediate advice from a solicitor with experience of dealing with such matters. Unless the individual has been charged, legal aid for such advice is limited but there are also restrictions on the use of private funds. This matter should be discussed with the solicitor.
A Restraint Order has to allow for reasonable living expenses. It also has make provision to allow the person to carry on any trade, business, profession or occupation. A solicitor may be able to negotiate variations to the order with the prosecuting authorities by consent or possibly obtain legal aid for an application to the court to vary the order.
Birds Solicitors can assist you if you are restrained in providing advice on how to deal with issues of disclosure and any variation application that may be possible subject to appropriate funding being available.
Once a defendant has been convicted the Court can in many cases make a Confiscation Order against them. The process is difficult for defendants and the provisions of the legislation are often described as draconian.
The process can be drawn out and if the defendant is serving a custodial sentence obtaining the information required can be complicated. Initially the defendant will be required to provide a statement disclosing their assets. Thereafter the prosecution will prepare a detailed statement setting out what they consider to be the benefit from the offence to the defendant and benefit from the “criminal lifestyle” provisions if they apply to the case. If the provisions apply they will go back six years from the date of charge and it will be assumed that all income and expenditure during that period is from criminal conduct unless the assumption is proved to be incorrect or would cause an injustice.
The burden of proof is placed onto the defendant to demonstrate that they have not benefitted from criminal conduct over the previous six years where the criminal lifestyle provisions are engaged. This can be very difficult as it can mean accounting for every item of income and expenditure within that period. Evidence will be required to show that any specific income was not from criminal conduct.
The defendant then has to produce a statement in response to the prosecutor’s statement. The defence solicitors and advocate will discuss matters with the Crown to narrow the issues to those that remain in dispute. If agreement cannot be made there will be a contested hearing at which the order will be made.
The court will have to decide on the level of “benefit” including from past criminal conduct under the criminal lifestyle provisions and make an order in that amount unless it is satisfied that the assets available to the defendant are less than the benefit figure. In such cases the order is made at the level of the assets. It does not matter when the assets were obtained or whether it can be proved that they were obtained legally.
A period of time to pay the order will be given which cannot be extended beyond 6 months. Interest will run on unpaid sums from the end of the agreed time period. Thereafter the Magistrates’ Court may start enforcement proceedings to recover unpaid sums or imprison the defendant in default of payment.
Birds Solicitors has a wealth of experience in dealing with restraint and confiscation proceedings. We have dealt with orders involving very large sums of money in the past and are adept at negotiating the best available outcome for our clients.
Steven Bird has lectured on confiscation and has written the chapter on restraint and confiscation in a forthcoming book on Drugs Law to be published shortly. He regularly takes on confiscation cases from other solicitors once the client has been convicted. It is reasonably common for defendants to seek a transfer of legal aid at the confiscation stage to a firm with expert knowledge of this area of work.
A guidance brochure detailing our services in fraud, confiscation and regulatory cases can be downloaded here.