Proceeds of Crime (POCA)
We provide unequalled expert advice and litigation services on all aspects of the POCA legislation. The Assets Recovery Agency is the agency that has been to date exclusively entrusted with applying the above powers.
These powers are now being extended to most other prosecution authorities including HMRC. Going forward, there will be a greater need than ever before for genuinely expert advice and assistance on POCA issues. This is a highly technical area with a surprisingly wide ambit.
Powers under the POCA regime include:
- Confiscation of the proceeds of crime
- Civil recovery of the proceeds of crime
- Taxation of the proceeds of crime
- Money laundering of the proceeds of crime
Confiscation after conviction of a criminal offence
The power to make a confiscation order enables the authorities to extract a sum of money that represents the value of the defendant’s benefit from the offences of which he has been convicted. All of the assets of the defendant, whether acquired legitimately or not, are vulnerable to being confiscated up to the value of the defendant’s benefit or restrained.
We can provide advice and assistance on all aspects of the proceedings including:
- Dealing with the paperwork
- Conducting /managing the confiscation proceedings and hearing
- Dealing with frozen assets under a restraint order
- Dealing with any legal issues arising out of a receiver having been appointed.
- Dealing with enforcement proceedings and/or issues arising out of the order having been made
Civil recovery
In circumstances where it is considered that property has been obtained from unlawful conduct, POCA authorities may seek to obtain a civil recovery order. This will have the effect of taking away any property the subject of the order. Importantly, the property subject to the civil recovery order may be followed into the hands of another person or into other property.
Additionally the authorities have the power to freeze a person’s assets with a property freezing order if it they have a good arguable case that a recovery order will be made.
They can also apply for an interim receiving order whereby an interim receiver is appointed to secure and deal with a person’s assets.
The advantage of civil recovery powers is that there is no need on the part of the authorities to prove any criminal offence: only that the property in the person’s hands is more likely than not the result of unlawful conduct on the part of that person or another.
We can provide advice and assistance on all aspects of the proceedings including:
- Responding to and advising on the merits of the property freezing order
- Making an application to discharge or vary the order
- Assessing the merits of the claim
- Conducting the High Court proceedings
- Dealing with the receiver
Taxation of criminal proceeds
Under Part 6 of the Proceeds of Crime Act 2002, the authorities may tax both the proceeds of crime and any outstanding tax liabilities if they have reasonable grounds to suspect that at least some part of the taxpayer’s wealth is derived from criminal conduct. These powers include issuing tax assessments and freezing tax assets.
We can offer a complete consultancy service from legal advice to advocacy both in the tax tribunal and the High Court including:
- Advice on the technical tax issues from our in-house expertise in direct and indirect tax
- Advice on challenging the Director’s jurisdiction to act in the matter and issue the tax assessment
- Representation in the tax tribunal, the Special Commissioners where the appeal must be lodged and any future appeals from any decisions from the tribunal itself
- Advice on the validity and merits of the freezing order obtained
- Advice and drafting of the court documents including the Defence to the debt claim that needs to be filed
- Representation at the High Court on the return date and subsequent recovery proceedings for the tax due
- Any relevant judicial reviews of the Director’s action or of the tribunal.
