What is POCA?

Material things such as cars, jewelry and household items can be confiscated, but the court can also freeze your bank accounts, which will stop you from operating, having huge impacts on your business. Authorities can also freeze or obtain your property.

Alos the prosecuting authorities will limit your monthly spend, and this will have a large impact on your day to day life for both you and your family.

What Is the Aim of POCA?

The aim of POCA is to close loop-holes, ensuring criminals cannot use their assets, and to recover the proceeds of the crime.

POCA proceedings must be commenced where:
1. A defendant is convicted of an offence in proceedings brought before the Crown Court or where a defendant’s case is committed to the Crown Court for sentence; and
2. The prosecution asks the court to commence POCA proceedings or the court considers it appropriate to commence POCA proceedings.

POCA proceedings are mandatory where the prosecution ask the court to proceed to the confiscation stage, potentially at a POCA hearing.

Confiscation orders can only be made by the Crown Court. The Magistrates’ Court has no power to make confiscation orders.

When determining how much a defendant should pay under a confiscation order there are two figures which need to be calculated – i) the benefit figure and ii) the available amount.

Once the benefit figure and the available amount have been calculated the confiscation order can be made. Using the benefit figure and the available amount a final figure, known as the recoverable amount, is calculated. The confiscation order is then made in the sum of the recoverable amount.

The starting point is that the recoverable amount is an amount equal to the defendant’s benefit from his criminal conduct. Therefore, as a starting point, the benefit figure is the recoverable amount. However, if the available amount is less than the benefit figure the recoverable amount is equal to the available amount.

EXAMPLE 

A defendant is convicted of supplying drugs and the benefit from this defendant’s criminal conduct is found to amount to £2 million. The benefit figure is therefore £2 million.
The defendant is wealthy and the value of his current assets amounts to £5 million, so the available amount is therefore £5 million.
The recoverable amount, in this case, is £2 million. This is because the recoverable amount is equal to the benefit figure. The defendant cannot be required to pay more than he has benefited from his criminal conduct.

Proceeds of Crime Act Sentencing

Proceeds of Crime Act sentencing varies depending on the amount of money ordered to be paid under the confiscation order. A default sentence is set by the court in the event that the defendant doesn’t meet the terms of the confiscation order. These maximum terms and default sentences are as follows:

Amount of Money Ordered to be PaidMaximum Term for Proceeds of Crime Act Sentencing
£10,000 or less6 months
More than £10,000 but no more than £500,0005 years
More than £500,000 but no more than £1 million7 years
More than £1 million14 years

If you are being investigated under the Proceeds of Crime Act and would like professional advice please call 01914862799 or email jbrown@nechambers.co.uk

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