The short answer is no, it isn’t. I have vivid memories of sitting in Manchester Crown Court many years ago and listening to a barrister argue the very point that the prosecution application for confiscation was simply not fair. The answer that came from the judge has always stuck with me:
“The Proceeds of Crime Act was never intended to be fair Mr [we’ll call him “Bloggs”], it was designed to strip criminals of their assets, the real question here is whether the application by the prosecution is lawful”
Does money laundering legislation mean that you can never escape?
In many cases, no. If you were the subject of POCA proceedings and the court has determined that for example you benefited from crime to the sum of £50,000 but you only had available £5,000. You will always remain liable for the outstanding £45,000. It may not be available at the time, and the prosecution cannot recover from you what you don;t have, but if they find out that you have it in the future they are likely to make an application under section 22.
What happened before the Proceeds of Crime Act?
Prior to the Proceeds of Crime Act 2002 there was a provision, originally in s16 Criminal Justice (International Cooperation) Act 1990 and repeated in s16 Drug Trafficking Act 1994, which provided that where a person had been ordered to pay, by way of a confiscation order, an amount less than that originally adjudged AND he had a realisable amount greater than that which he was ordered to pay then the amount, on application by the Prosecutor/ receiver could either (I) substitute a new amount to be paid or (ii) be ordered to serve a higher default sentence
Part of the rationale of the new proceeds of crime legislation which became POCA 2002 was to transfer all confiscation proceedings to the Crown Court and to provide a single confiscation process applicable to all types of crime from which a benefit had been obtained by the offender.
So, what have Burton Copeland found to be common in this scenario?
Our Fraud and Financial Crime Department have seen frequent applications from the CPS Specialist POCA Divisions re- opening decade old cases. The focus seems to be upon either property which has increased in value (and which was listed an asset in the original schedule) or inherited property (which has been flagged up with the Land Registry was being in the defendants name).
Also, due to the change in pension legislation which came into force in 2015, pensions may be at risk. Prior to the change, pensions were not deemed to be an available asset. However, defendants are now able to draw down the whole of his pension which therefore can become an asset which is, to the Crown, immediately available and in respect of which they may make a S22 application to satisfy any outstanding debt.
Other scenarios which would give rise to section 22 applications by the Crown?
- Lottery win
- Personal Injury Claim/Compensation – potential
- Accumulated Savings
- Hidden Assets – if arrested on a new matter
- Acquisition of Vehicles and/or other tangible property
No matter the asset, no matter how it was acquired, if the Crown find out, they can, and will make an application to the Court to restrain it with a view to making the section 22 application.