| Also known as POCA, this has many effects particularly on fraud type investigations and cases.
Money Laundering
People can be affected in a number of ways:
• Individuals on the fringes of investigations, generally family & friends who have received money, or ‘criminal
property’, from the main suspects, are being charged (with money laundering) when previously they would not
have been.
• When investigating a specific allegation, the police will now often also start a widespread money laundering
investigation if they think they can justify it.
• Accountants and solicitors, if they are in the regulated sector, have a legal duty to report suspected money
laundering the the Serious & Organised Crime Agency (SOCA). Failure to report suspected money laundering
is a criminal offence, as is tipping off the client that they have done so.
• Civil recovery of the alleged proceeds of crime by SOCA (formerly the Assets Recovery Agency - ARA). There
are wide powers to do this and deprive someone of their assets – but where there is not enough evidence to
bring a criminal case!
Restraint
Increasingly the prosecution will get a Restraint Order, or freezing order, from the court (in secret) against someone is under investigation or prosecution. When it is served it immediately freezes all their assets worldwide, and often also those of family and related companies.
These are strict provisions that we are familiar with:
• Immediate disclosure of worldwide assets
• Statements of truth detailing all assets and transfers over the last 6 years
• How this information can impact on the main case
• Repatriation of assets abroad
• Appointment of Management Receivers to trace and recover assets
• Production Orders to obtain personal records
• Contempt proceedings for alleged non-cooperation
• Living expenses allowance and varying this
• Releasing third party assets caught up
• Negotiating the sale of property
Confiscation
In many cases once there is a conviction (after trial or a guilty plea) the prosecution will seek a Confiscation Order. This can be more complicated than the main case.
We are very experienced and very successful at arguing:
• Benefit: the calculated benefit from the offence
• Realisable Assets: of the defendant (also known as the Available Amount) which can go back 6 years
• Assumptions: including ‘criminal lifestyle’ and gifts (tainted, hidden, undervalue)
• Confiscation order: an amount (up to lower of benefit or realisable assets figure) and a time limit to pay
• Enforcement: time to pay, appeal, etc
• Discharge and variation of confiscation orders
• Default sentence: an extra prison sentence if the order is not paid in time
• Appointment of Receivers to sell assets
• Reconsideration of Realisable Assets (formerly Certificate of Inadequacy): to reduce the confiscation order if
assets achieve less on sale than valued when the order was made
Cash Seizure
These powers affect a lot of people who have never previously had any contact with the authorities. Anyone found to have £1000 cash is at risk of:
• having it seized by the authorities
• a Detention Order being made by the Magistrates' Court to allow the police to hold it for up to 2 years whilst
they investigate
• a Forfeiture Order by the magistrates court unless the individual can prove the cash was from a legitimate
source and for a legitimate purpose
• This applies even if the cash belongs to someone else - and it is very difficult for that third party to be heard to
get their cash back
The odds can be stacked against the individual in theses circumstances. We have a lot of experience, and a lot of success, in getting cash returned or winning these cases.
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