If you were able to listen in to a conference between client and solicitor, you might hear an exchange a little like this one:
‘What am I looking at?’
‘Around 12-15 months, suspended if you are very lucky.’
‘Oh, I can live with that!’
‘But there is something else?’
‘You are going to lose your money, your house and your car.’
What is confiscation?
At its most simple it is the process by which those convicted of a crime are deprived of their benefit from that crime.
So, for example, Jill steals £10,000 from her employer and spends it on a luxury holiday.
Her proceeds from that crime (referred to as the ‘benefit’) is £10,000, so she can expect a confiscation order to be made in that sum.
That sounds fair
Well, it does sound ok on the face of it, but it is a little more complicated than that. The £10,000 from the confiscation order will not go to the employer; it will go to the state.
But the court may also make a compensation order in the sum of £10,000 to repay the employer for their loss.
So, Jill will have to pay £20,000?
It can get a whole lot worse!
For example, Paul steals a Porsche worth £130,000 but a few hours later he is stopped by the police, the car is recovered, and it is returned to its owner.
The ‘benefit’ here is £130,000 (the value of the car), even though the car has been returned.
Yes, it is. The examples above are all from real cases, and while the result outlined above does not always follow, the starting point is that confiscation is ‘draconian and intended to be draconian’.
Certain convictions trigger what are known as ‘lifestyle provisions’ which means that your finances going back many years will be subject to investigation – unless you can establish that the income was lawfully obtained, the monies will be at risk of being added to the ‘benefit’ figure.
I haven’t got any money, so I don’t care
Sure, but the benefit figure will still be determined, and if for example, you come into some money at a later date (for example an inheritance or pension), the prosecution can seek to take that money from you. Any property of value can be seized in order to satisfy a confiscation order, and if the court believes that you can pay the order, and you fail to do so, you can be sent to prison in default.
It all sounds rather complicated
It is, and we haven’t even mentioned gifts, hidden assets, corporate veils and A1P1 considerations.
Often the real punishment felt by an offender is not the headline sentence but the financial penalty that flows from a confiscation order.
The rules are incredibly complicated, and we often find fundamental errors and assumptions being made by financial investigators. Basic errors can result in wrongful calculations amounting to many tens of thousands of pounds.
In some cases, we can argue that the making of a confiscation order is so disproportionate that to do so would be unlawful.
So, before entrusting your case to any other solicitor ensure that they are up to speed not only on the basics of the offence with which you have been charged, but also in relation to confiscation.
John Howey, Senior SolicitorRead More
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‘Follow the money’ is a rather clichéd line from the film ‘All The President’s Men’ which charted the scandal that engulfed President Nixon in the 1970s.
But even today, the money trail is very much the first line of investigation in serious fraud cases, and one that is increasingly difficult to follow.
Not so long ago, the ways of committing fraud were somewhat limited and for that reason also somewhat simplistic.
That can no longer be said, as financial markets spanning the world transfer billions of pounds during each hour of trading. Bitcoin and other emerging ‘crypto currencies’ complicate the picture even more.
Swaps, derivatives, forwards, securities, bonds, secondary markets… We could go on and on…
Why does this matter?
It matters to us as lawyers, as a mere understanding of the law is not enough for the successful defence of these complex cases, your lawyers must understand first and foremost the environment in which the crime has been said to have been committed.
Your lawyer must confidently speak ‘your language’
What is shocking, however, is that in a recent high profile case a purported expert witness for the prosecution was so out of his depth that he had to ask advice on basic financial terms.
The Court of Appeal observed:
“It’s not a matter to be downplayed when the Crown in a major prosecution calls a witness who is wholly out of his depth.
We take a very serious view of what in the judgment we will describe as a debacle, whatever the outcome.
We want to know how did it come about that he was instructed when he lacked expertise? We are very concerned as to how he can have been instructed, the due diligence, and how it came to light.
We are troubled by it.”
This particular witness was exposed by what has been described as a ‘devastating cross-examination’ by a defence barrister.
While the appeal courts are there to correct mistakes, it does not mean that every trial error will result in acquittal.
It is therefore vital that things are right the first time.
This requires a defence team who truly understand the business of international finance, who can unravel the complexities of your case, and can work as a team with top advocates capable of ‘devastating cross-examination’.
John Howey, Senior SolicitorRead More