Fraud cases are multi-layered and will regularly involve both a prosecution for the substantive crime and also proceedings for asset recovery or confiscation. Often in fraud cases, the argument will be made that the defendant has received financial benefit from their crimes and that these benefits should be recovered.
Under the Proceeds of Crime Act 2002, assets can be confiscated or recovered.
In terms of confiscation proceedings, these occur when there has been a conviction. In England and Wales, a confiscation order can be considered if the defendant is convicted of an offence in the Crown Court or has been committed to the Crown Court for sentencing or for the consideration of a confiscation order.
The Court will consider whether the defendant has a ‘criminal lifestyle’ when making the order. If the defendant does have a criminal lifestyle, the Court will look at the benefit he or she has obtained from this general criminal conduct and will refer to certain assumptions set out in the Act. These assumptions include assuming that all property held by the defendant at any time in the six years before proceedings for the offence in question began were held as a result of general criminal conduct.
In the event that the Court decides the defendant does not have a criminal lifestyle, the Court will examine how he or she has benefited from the particular criminal conduct in question (i.e. the crime committed).
There is also the option of reclaiming the proceeds of crime through civil proceedings as opposed to criminal proceedings. This too is governed by the Proceeds of Crime Act and allows for recovery where there has not been a criminal conviction. This allows for recovery of property obtained through unlawful conduct and involves proceedings before the High Court in England and Wales.
These proceedings can be very daunting for individuals and it is important that you are represented by someone with expertise in complex matters such as fraud. High-quality representation is essential in order to safeguard your position. For example, human rights arguments can be advanced under Article 1 of Protocol 1 to the European Convention on Human Rights which protects the right to property. Recent cases on this point have held that a confiscation order must be proportionate to the aim of recovering the proceeds of crime. Arguments on these points are intricate and require experience to be made successfully.
Asset Recovery and Confiscation Proceedings Barrister London
Excellent legal representation is, therefore, the best way to protect your rights and tackle confiscation and asset recovery proceedings. Contact me directly to find out how I can help on 020 8108 7186.