The rationale behind POCA is simple: crime does not pay.
The powers created by POCA are vast but a key one is confiscation.
If a defendant is convicted of an offence the prosecuting authority, on behalf of the Crown may make an application under POCA for confiscation; this can be following a conviction in either the Magistrates’ or the Crown Court where it is suspected that the defendant has benefitted financially from their criminal activity.
There are two key figures to consider in confiscation proceedings:
1) Benefit amount: the figure which the Crown alleges has been obtained as a result of the defendant’s criminal activity.
Unless the defendant can prove otherwise, where a ‘criminal lifestyle’ is alleged and established by the Crown, the benefit amount will also include all assets obtained by the defendant during the last six years, which may not necessarily be directly linked to the crime.
This has the potential to significantly increase the benefit figure.
A criminal lifestyle is defined in numerous ways but can be one of the following:
- where the defendant has committed an offence which is listed within POCA such as money laundering, some drugs offences or trafficking offences
- where the defendant has been convicted of three or more offences which they have benefited from by way of £5,000 or more
- within the last six years the defendant has been convicted on at least two separate occasions of an offence which they benefited from by way of £5,000 or more; or
- where the defendant has committed an offence over a period of six months or more and over that time, they have benefited from conducting the offence by way of £5,000 or more.
2) Available amount: the value of defendant’s available assets at the time of prosecution.
The court will, unless there is evidence of hidden assets, make a Confiscation Order in the sum of the available amount, not the benefit amount.
If the available amount is minimal, then the court can make a nominal order of £1.
However, under Section 22 POCA, the Crown can re-open the matter and ask the court to re-consider the available amount, particularly where the benefit amount is considerably higher, under the original Confiscation Order. This can happen at any time, where it is just to do so, until the benefit amount has been repaid.
It is therefore vitally important to challenge not only the available amount, but the benefit amount too.
Once a Confiscation Order is imposed by the court there are various powers of enforcement available to the Crown including foreign travel bans by way of confiscating passports. This will be imposed where the court considers it necessary to do so.
One issue that can often become a problem for those who are subject to a Confiscation Order is where the Order is not paid within the time limit imposed by the Court (up to three months); if the terms of the Order cannot be met, the defendant will be imprisoned for a period set by the court in the initial proceedings which directly corresponds to the value of the Order.
It is important to note that imprisonment in default of paying an Order does not create a ‘nil balance; on release the Order will still be payable.
This can be seen by a recent case at Westminster Magistrates' Court where one of the Hatton Garden burglars refused to pay the Confiscation Order, despite having the assets to do so; he was sentenced to a further seven years imprisonment.
As discussed, POCA is wide ranging and goes beyond confiscation – for example, at the start of an investigation the defendant may be subject to a Restraint Order on any assets which prevents the disposal of them until a Confiscation Order is paid in full.
A sole trader running a skip hire business was convicted of operating a regulated waste disposal facility without a permit.
Upon gaining a permit, the sole trader was further convicted of not following the conditions attached to that permit.
These convictions were both under environmental legislation the sole trader was sentenced to 12 months imprisonment.
The Environment Agency pursued a Confiscation Order and alleged a criminal lifestyle had been engaged in and a benefit amount was established in the following the avoidance of start-up costs of running a legitimate business, clear up costs of the inappropriately disposed waste, profits reflecting the cash coming into the business as it had benefitted from more than just profits and motor vehicles obtained, again, as part of the criminal lifestyle.
In total, for breaching environmental legislation and regulations, a benefit figure of £963,000 was established against the employee.
The available amount, however, was £14,000 on the basis that the only assets available were the motor vehicles.
The sole trader was subject to Confiscation Order in the sum of £14,000 which was payable within three months or in default of payment, it was ordered that he serve a 12 month custodial sentence.
This case study highlights the danger of not following the environmental legislation and where potentially a person may find himself personally liable for the failings of the company.
If you have any concerns regarding environmental law or the proceeds of crime; please contact the Regulatory and Corporate Defence Team who will be happy to assist you.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2020.