PROCEEDS OF CRIME ACT, RESTRAINT, CONFISCATION & ASSET RECOVERY ORDERS

Our barristers are regularly instructed in cases of this specialist nature often achieving excellent results due to their expertise and dedication.

These cases are complex and require experienced representation. 25 Bedford Row barristers are regarded as some of the leading experts in the confiscation of assets under the Criminal Justice Act 1988, Criminal Justice (International Co-operation) Act 1990, Drug Trafficking Act 1994, Proceeds of Crime Act 2002 (POCA) and Criminal Finances Act 2017 (CFA).

We act for individual defendants, respondents and third parties, along with corporate bodies, directors and high-net-worth individuals. We are instructed in civil and criminal matters domestically and worldwide.

We have vast experience in defending applications for freezing assets, restraint orders and confiscation orders and orders for asset forfeiture, as well as a strong track record of securing the return of a wide variety of assets under even the most challenging of circumstances.

If you have had cash or assets seized or frozen by a court, the police, an accredited financial investigator, customs, HMRC, Serious Fraud Office (SFO), UK Border Agency, local authority or other government authority, it may be possible to secure the return of those assets with the right legal advice and representation.

Our proceeds of crime barristers have specific experience with some of the most complex and serious proceedings, including the following:

Our specialist POCA barristers are committed to helping clients regain access to their seized assets. We offer extensive expertise in all restraint order matters including drafting applications for variation and discharge. We are skilled in advocacy in respect of these matters.

We will be able to assist with appeals, repatriation orders and disclosure orders, and advising on the rights of third parties, company directors, spouses and partners.

Members of 25 Bedford Row work tirelessly to secure the best outcome for you in what can be stressful, complex and demanding proceedings. With the experience and judgement to know the best route to challenge and settlement. We offer pragmatic and down-to-earth advice in plain English to get the best result for you.

Barristers work with many leading law firms and some of our members also have direct access accreditation, allowing them to take instruction directly from the public where the case is suitable (see direct access).

For help with Proceeds of Crime Act confiscations and asset recovery, please call 020 7067 1500 or use the contact form on the right and we will respond promptly.

Our Proceeds of Crime Act defence & asset recovery services

Confiscation Proceedings

Members of Chambers are frequently acting in investigations ranging from the seizure of personal papers and effects up to the seizure of individual cash sums in excess of £1 million.

The law in respect of confiscation proceedings is draconian but there are ways in which to respond to these proceedings effectively. The law has developed to allow for the requirement of “proportionality” to be taken into account at several stages of the process, but this needs to considered carefully and presented with skill and clarity.

We have also acted in lengthy and substantial civil forfeiture proceedings where State/ Government agencies have sought to gain possession of property without any determination as to the guilt or innocence of the owner.

Cash seizure

POCA gives the powers to seize cash derived from or intended for use in crime, and to secure its forfeiture in magistrates' court proceedings.

No conviction is required for the forfeiture of the cash to be ordered; cash forfeiture proceedings are civil proceedings and the civil standard of proof applies.

We have extensive experience in challenging seizures of cash related to all types of criminal enquiry, including tax enquiries, having been able to secure the return of substantial sums for clients both while tax investigations are ongoing and following prosecutions for tax evasion.

Cash forfeiture

We have frequently been involved in securing successful outcomes in applications for forfeiture of cash seized under the Proceeds of Crime Act 2002. This work calls for a high level of skill and judgement and a delicate tactical touch when faced with parallel criminal and civil investigations.

Money laundering

Our proceeds of crime barristers regularly represent a wide range of clients, including interested third parties, in relation to money laundering offences, including in relation to the freezing or seizure of cash and other assets suspected of involvement in money laundering.

Third party confiscation

We are able to represent third parties who wish to have their interests taken into account during confiscation proceedings. One of the more common examples will be where the spouse of a defendant has purchased property in joint names especially if this took place before any offences were committed. It may be possible to challenge the inclusion of the entire property as realisable for the purposes of confiscation.

Third parties are often required to provide information to the court, we are able to advise and assist in respect of this situation to avoid any adverse finding and secure the interests of third parties before a final confiscation order is made.

Restraint orders

Restraint orders prohibit a specified person from dealing with any realisable property held. They may be made if certain conditions are met at various stages of a criminal case.

Such an order may be made both against the defendant or person under investigation, and any other person holding realisable property.

We are able to advise you in respect of an application to vary or discharge such an order and we have a track record of success in this area.

Freezing orders

If a freezing order has been made against you in respect of civil proceedings such as an allegation of civil fraud, we are able to advice and act for you in this respect.

Account Freezing and Forfeiture Orders (AFFO’s)

The Criminal Finances Act 2017 allow for law enforcement agencies to apply quickly in the Magistrates Court to freeze a UK bank account balance of £1000 or more. The procedure is civil in nature so the requirement is simply to prove allegations upon the balance of probability rather than to the criminal standard.

The enforcement officer applying for this type of order must have reasonable grounds for suspecting that money held in an account is a) recoverable property (property obtained through unlawful conduct), or b) is intended by any person for use in unlawful conduct.

The freezing order may remain in place for up to two years but may be forfeited upon a successful application for a forfeiture order, again to the civil standard. The court must again be satisfied that the money or part of it is recoverable property or is intended by any person for use in unlawful conduct.

These orders have become more popular than Unexplained Wealth Orders (See below) which have attracted more media interest.

We are able to advice you and represent you in order to resist these orders or to appeal or apply to set them aside where applicable.

Unexplained Wealth Orders (UWO’s)

The High Court may, on an application made by an enforcement authority, make an unexplained wealth order (UWO) in respect of any property if the requirements are met.

The court must be satisfied that there are reasonable cause to believe that the respondent holds the property and that the property is greater than £50,000.

There must also be reasonable grounds for suspecting that the known sources of the respondent’s lawfully obtained income would have been insufficient for the purposes of enabling the respondent to obtain the property. Finally that the respondent is a politically exposed person, or there are reasonable grounds for suspecting that they are or have been involved in serious crime or connected to a person so involved.

Why should I use 25 Bedford Row for Proceeds of Crime Act Proceedings & Recovery of Assets?

25 Bedford Row houses a group of highly experienced specialists who defend individuals in the full range of restraint, confiscation, cash seizure and recovery proceedings both at first instance and at appellate level.

Our top tier fraud, corporate crime and serious organised crime practice means we are experienced in cases of the highest value and complexity, often involving multiple jurisdictions.

Members of Chambers also lecture and write extensively on legal and practice developments in this area and via our chambers shared learning initiatives we ensure that every member of 25 Bedford Row is fully adept to deal with POCA proceedings in every case at every level.

We recognise that when facing confiscation proceedings, you often stand to lose everything. Members of 25 Bedford Row are committed to fighting hard in every case of this type from the smaller to the most difficult and complex. Lower value cases are treated with the same level of importance at 25 Bedford Row.

We have a reputation for preparing cases meticulously ensuring that every detail is grasped, while also offering an approachable and down-to-earth manner to deliver practical, realistic advice to our clients.

Common questions about POCA confiscations & asset recovery

What are the measures within POCA (Proceeds of Crime Act 2002) intended to achieve?

The curbing of money laundering activities
Depriving criminals of the proceeds of their criminal conduct
Giving the enforcement authorities the powers of cash seizure
Offering a regime for enforcement authorities to apply for Restraint Orders.

When can a Confiscation Order be made?

Confiscation Orders can be made following conviction of a criminal offence in the Crown Court and following a committal for sentence (or for the purposes of confiscation) from the Magistrates Court to the Crown Court. The Crown Court has the power to confiscate from convicted defendants, their benefit from crime.

The court must decide if the defendant has a criminal lifestyle (which is assumed for certain offences such as drug dealing) or has benefited from his particular criminal conduct.

Confiscation Orders are made under the Criminal Justice Act 1988 and the Proceeds of Crime Act 2002 depending on the date of the offence.

What is Civil Recovery?

The Magistrates Court now has powers to make orders such as Account Freezing and Forfeiture orders (AFFO’s - see above) which are essentially decided on a civil standard according to a set of requirements established by the Criminal Finances Act 2017.

The High Court now has a power to make an Unexplained Wealth Order (UWO) under the same legislation.

How much can the court take with a Confiscation Order?

The purpose of confiscation proceedings is to recover the financial benefit that the defendant has obtained from criminal conduct, or regulatory offence. The court calculates the value of that benefit and orders the defendant to pay an equivalent sum (or less where a lower sum is shown to be available for confiscation).

There is no upper limit or lower limit for how much can be seized with a Confiscation Order.

What proof is needed for the confiscation of assets?

Any question arising in connection with whether a defendant has a criminal lifestyle or has benefitted from criminal conduct must be decided on the civil standard of proof, i.e. on the balance of probabilities.

In certain circumstances the court is empowered to assume that the defendant’s assets, income and expenditure during the period of six years before proceedings were brought, have been derived from criminal conduct and to calculate the ~~confiscation order~~ benefit figure accordingly.

The court has no discretion not to make these assumptions unless they are shown to be incorrect or that there would be a serious risk of injustice if they were made. The burden of showing that an assumption is incorrect falls upon the defendant.

This means there can often be significant room for dispute over what assets are truly eligible for confiscation, providing the opportunity for successful challenges or to negotiate a settlement to your advantage.

How long is there to pay a confiscation order?

The whole amount is due on the day the order is made unless the court is satisfied that the defendant is unable to pay the full amount immediately, it may allow payment within a period of not more than 3 months.

The defendant may apply for an extension of up to 6 months from the date of the order, if, despite making all reasonable efforts to pay, he or she is unable to pay.

What happens if I do not pay my confiscation order?

When a confiscation order is made, the court will fix a term of imprisonment in default of payment. The maximum amount of imprisonment is determined by the amount payable under the confiscation order. Enforcement proceedings are taken in respect of default in the Magistrates Court.

Can a confiscation order be varied?

The prosecution may apply to vary a confiscation order to increase the benefit figure if there is evidence that was not available at the time it was made within 6 years of conviction.

The prosecution may also apply to vary in respect of the available amount where it was originally found to be less than the benefit figure and thus vary the original confiscation order to such amount as it believes to be just, provided that the variation does not exceed the benefit amount.

This makes it clear that care must be taken in the original proceedings to reduce the benefit figure as much as possible even where the available amount at the time is likely to be minimal.

A defendant may also apply to vary a confiscation order if he or she is able to demonstrate that the available amount is inadequate to meet any amount remaining to be paid under the confiscation order. This may occur for example where assets were overvalued as part of the calculation of the available amount before the confiscation order was made.

What is considered money laundering?

Money laundering is the process by which the proceeds of crime are converted into assets which appear to have a legitimate origin, so that they can be retained permanently or recycled into further criminal enterprises.

It was first criminalised in the United Kingdom in respect of the proceeds of drug trafficking, by means of an offence in the Drug Trafficking Offences Act 1986. Further drug money laundering offences were subsequently enacted, together with separate offences relating to the proceeds of other criminal conduct and terrorist funds.

There are five sets of money laundering offences in force, each applying to a different range of offences and/or jurisdictions.

Contact us about Proceeds of Crime Act defence & Asset Recovery

For expert advice and representation in all matters related to the Proceeds of Crime Act and asset recovery, please call 020 7067 1500 or use the contact form below and we will respond promptly.