Confiscation Orders

We are proud of our track record and the experience of our confiscation order solicitors in representing clients in confiscation proceedings, many of which have involved multi-million pound figures. Our team of lawyers works tirelessly to ensure that the final order is proportional to the actual wrongdoing.

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Confiscation orders are not directed towards a particular asset. They are issued after an individual has been convicted of an offence that resulted in their financial gain. The purpose of a confiscation order is to prevent the defendant from benefiting from the proceeds of their crime. The court determines the amount of benefit received from the relevant criminal conduct and the defendant’s available assets, then makes an order accordingly. As the court determines the amount of benefit received from the crime and the defendant’s available assets, allegations of ‘criminal lifestyle’ and ‘hidden assets’ may be made.

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Confiscation proceedings begin with the prosecutor serving a Statement of Information that contains matters relevant to the prosecution including any evidence of the defendant’s ‘criminal lifestyle’ and the amount of their benefit, from either their particular crime or general criminal conduct. It will also contain information about the defendant’s available assets to help in ascertaining the exact amount of the confiscation order to be made. It should be noted, however, under the Proceeds of Crime Act 2002 it is the defendant’s responsibility to satisfy the court of the available amount of assets.

Confiscation law is complex and prosecutors often draft their allegations in a way that will seem very unfair to a defendant. A response to the proceedings, therefore, requires a clearly devised defence strategy and careful and detailed analysis by a team of dedicated defence lawyers who are committed to making sure the end result is fair and proportional.

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Benefit Figure

‘Benefit’ is defined as the proceeds of the offence. When assessing the benefit figure, the prosecution will conduct an investigation into the particular criminal conduct, which is the amount of turnover generated by the offence. They will also add to this figure, where they can, an allegation that the defendant has led a general criminal lifestyle and therefore has received a benefit from general criminal conduct.

In some situations, the Prosecution will allege that the defendant has what is referred to as ‘hidden assets’. This allegation is particularly complex and involves the defence having to prove that they have not got assets which are unaccounted for. If a Court determines that a defendant has hidden assets, the defence must then show that these hidden assets (the nature of which the prosecution is unlikely to be able to specify because they are hidden) do not exist. The defence lawyers have to serve a Defence Response, setting out the facts that are not accepted. The burden is therefore on the defence to show the legitimacy of the defendant’s assets.

Realisable Asset Figure

Once it has been decided what the benefit figure should be it will then consider what the defendant can actually afford to pay, which is referred to as the ‘available amount’ or the ‘realisable asset figure’. The prosecution, in their statement, will have set out what they believe the defendant can afford to pay. However, this figure is usually very inaccurate, particularly where they allege that the defendant has access to hidden assets. We would, therefore, need to obtain valuations of any assets that exist and will make representations regarding third-party interests in the property, such as the spouse’s financial interest in the family home.

The Court will then make a decision about what the defendant can actually afford to pay and will then make a confiscation order for either the Benefit figure or the Available Amount – whichever is the lower of the two. It is sometimes possible to negotiate the Benefit figure and the Available Amount figure with the Prosecution, which removes the uncertainty of what the Judge will otherwise order.

Time served in default

When a Confiscation Order is made, the Judge will order the Defendant to pay it, which usually requires the defendant selling their assets. The defendant is allowed a period of six months for this, but if the Defendant does not pay the order by the deadline set, they may serve time in prison in default of the payment. This is in addition to time served for the offence itself and is proportional to the value of the Confiscation Order. The maximum time that the Judge can order to be served in default of paying the confiscation order is 10 years.

Certificate of Inadequacy

When a defendant’s assets are sold and they are less than anticipated by the Court, defence lawyers can apply to the Court to vary the Confiscation Order – a process which used to be referred to as a ‘Certificate of Inadequacy’. If this application is successful it will reduce the value of the order to match the value of the Defendant’s realised assets.

Certificate of Increase

When a Defendant’s assets are realised and they raise more money than was anticipated by the Court the Prosecution may apply to the Court to increase the Confiscation Order- a process which used to be referred to as a ‘Certificate of Increase’.

Our experienced confiscation solicitors have built up a significant reputation for their skills and expertise in defending confiscation orders. We have a proven track record for ensuring that our clients walk away from confiscation proceedings with orders that are reasonable, affordable and proportional to the situation.

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