POCA
The Importance of having the Right Legal Representation
The focus of the confiscation regime is to ascertain the benefit gained by the Defendant from his/her criminal conduct. Upon making this arithmetic calculation, the focus then turns to establishing the means in which the Defendant has available to him/her to satisfy any such Confiscation Order.
Should a Defendant’s available assets be lower than the purported benefit figure than a Confiscation Order will be made in the sum of the asset figure and consequently that will be the Recoverable Amount under the terms of the Order.
However, should a Defendant ever win the lottery or be fortunate enough to obtain a substantial inheritance, or even obtain assets via legitimate means, then the Prosecution has the power under section 22 of the Act to request an uplift in the Defendant’s available amount up to the sum of the benefit figure.
The case of R v Padda [2013] EWCA Crim 2330 illustrates that it is entirely reasonable and lawful even after a period of over six years for the Prosecution to request that the Defendant’s available amount be reconsidered. Moreover, it further establishes the notion that the legislation is extremely draconian in nature as it has been reaffirmed that legitimately obtained assets can be used to satisfy any Confiscation Order.
During the confiscation process, it is important for your legal team to try and reduce the purported benefit figure as much as possible as well as obtaining accurate valuations and figures in relation to your available means.