1) CRIMINAL CONFISCATION PROCEEDINGS
These proceedings are raised in the criminal courts. If you are convicted of an offence covered by the act you can be served with a statement of information upon conviction. This statement will take one of two forms:-

Particular Criminal Conduct
The statement may allege that property or cash seized at the time of arrest for an offence is the proceeds of the particular criminal conduct established. In such circumstances the confiscation sought by the Crown is limited to the value of the particular items seized and does not extend further. The burden of proof lies on the respondent to satisfy the court on the balance of probabilities that the property or cash seized is not the proceeds of crime.

Confiscation Proceedings
If an accused is convicted of a ‘lifestyle’ offence the Crown may serve a statement of information detailing the amount of benefit from criminal conduct over a period of 6 years preceding the date of the offence. The offences considered to be ‘lifestyle’ offences in Scotland are laid down by Schedule 4 of the Proceeds of Crime Act 2002. These proceedings can be particularly draconian as the original benefit figure is often far higher than the benefit actually gained from criminal conduct. Indeed it is possible for someone who has gained no benefit from criminal conduct to face a confiscation order for thousands of pounds. This can often leave an individual feeling as if the proceedings are very unfair. It is essential for an individual faced with confiscation proceedings to obtain the services of an experienced solicitor in this area. Alastair Gray has particular expertise in proceeds of crime matters and can assist to protect assets and minimise the amount of any confiscation order made. On average we have been able to reduce the benefit figure to around 10 per cent of the original figure. This is done through expert forensic accountancy and meetings with the client to consider and vouch for the unidentifiable income exposed by the Crown.

These proceedings are highly complex. In essence the Crown collate information about the finances of an individual over 6 years preceding the offence and compile the statement of information. They will look at the difference in assets from the beginning of the period to the end of the period and will subtract what they can identify as legitimate income. Every penny that cannot be accounted for is alleged to be the benefit of criminal conduct and it is for the accused to prove on the balance of probabilities that it is not.

The Crown will seek a confiscation order for the full benefit amount if you have the assets available to pay it. The statement of information will show the ‘available amount’ that the crown has calculated. If the available amount is less than the benefit amount the Crown cannot seek an order for any more than is available. If the available amount is nil then the court can only make an order for a nominal sum. A confiscation order is not an order allowing the Crown to confiscate your property or assets. It is merely an order for payment. The court will normally grant a period of 6 months to pay the confiscation order and an application can be made for a further 6 months if exceptional circumstances can be shown.

We have considerable experience in dealing with Proceeds of Crime matters. We are happy to represent individuals who have not used our firm for their main criminal case. Not all criminal firms are willing to conduct Proceeds of Crime matters. If you find yourself in this situation please feel free to contact us and we will gladly assist. If you were covered by Legal Aid in the preceding criminal case your cover will extend to include the proceeds of crime case so there is no need to worry about hidden fees.