Proceeds of Crime
The Proceeds of Crime Act 2002 governs the law relating to confiscation of money and assets that have been gained through criminal conduct. It allows the authorities in Scotland to seek confiscation or forfeiture of cash and assets that it alleges are the Proceeds of Crime. Proceedings are judged on a civil law standard of proof. It is a particularly complex piece of legislation that allows the Crown to pursue two distinct avenues to recover the proceeds of crime.
There are 2 types of Proceedings
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.
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. Our solicitor 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.
2) CIVIL RECOVERY PROCEEDINGS
These proceedings are raised in the civil courts. The Scottish Ministers may apply to the court for a detention order allowing them to detain cash or assets seized in criminative circumstances. These proceedings will most often be raised when someone is found in possession of a large sum of cash (usually over £1000) with no obvious explanation for its origin. Police intelligence about known individuals is often relied upon.
It is open to the respondent to oppose detention. To be successful vouching for the source of the cash will need to be produced. The court will consider any vouching provided against the information put forward by the Scottish Ministers and will decide on the balance of probabilities whether to grant detention. If detention is successfully opposed the cash will be returned. If it is granted the Scottish Ministers will have a specified period in which to raise proceedings for civil recovery of the sums detained.
What follows is usually a period of negotiation during which the Scottish Ministers will consider any vouching provided and whether they accept that the money was not the proceeds of crime. It is essential to have a solicitor acting for you in this period as it is possible to have 50 per cent or more of the money returned without attending court. If agreement cannot be reached the case will proceed to proof in the civil court. The court will decide on the balance of probabilities whether the cash seized is the proceeds of crime or not.
Proceeds of Crime is a particularly niche area of legal practice. Not all firms are prepared to carry out this type of work. It requires an in depth knowledge of legislation, accounting and financial affairs. It is crucial that you enlist the services of an experienced solicitor in this field to ensure that your assets are protected.