MAKE CRIMINALS PAY
What is POCA?
The Proceeds of Crime Act 2002 (POCA) was enacted to enable the confiscation of assets from persons who benefit from the proceeds of their criminal conduct. The Act also allows the law enforcement agencies to investigate and act to recover cash, property and other assets, which have been obtained through unlawful conduct or which is intended to be used in unlawful conduct, and to tackle money-laundering operations.
What’s new about POCA?
The Proceeds of Crime Act 2002 provides law enforcement agencies with substantial opportunities to deprive criminals of their ‘ill gotten’ gains.
Confiscation
Confiscation orders may be made by the Crown Court against persons who are convicted of acquisitive crime, up to the value of the offence(s) for which they are convicted. The criminal’s available assets, irrespective of whether they are lawfully held, must be realised to satisfy the order.
For more serious crimes, such as drug trafficking, offenders are deemed to have a criminal lifestyle, and any unexplained wealth during the previous six years may be calculated towards their benefit from crime.
The onus is on the criminal to prove that his wealth is from a lawful source.
Restraint orders
Restraint orders may be granted by the Crown Court prior to conviction to prevent assets being dissipated.
Cash Seizure / Forfeiture Orders
Cash amounts in excess of £1,000 may be seized from persons or premises if it is suspected that it is derived from unlawful conduct.
The Magistrates Court may grant an order detaining the cash whilst enquiries are made.
Ultimately a forfeiture order may be made in respect of the cash.
These are civil proceedings and there is no need for any person to be convicted of any offence. The burden of proof in both confiscation and forfeiture proceedings is the 'balance of probabilities'
Money Laundering Investigations
Criminals can be arrested for money laundering if it is suspected that they are living of the proceeds of crime, or assisting others to do so.Assets may be seized as evidence using powers under the Police and Criminal Evidence Act (PACE), although there are usually no powers to seize assets in confiscation proceedings.
Confiscation Orders may be made following conviction in the Crown Court. Often during the course of such investigations large amounts of cash are seized which may be forfeited or confiscated.