Once a defendant has been convicted of certain scheduled offences, a confiscation order may be put in place in order to ensure the defendant cannot benefit from the financial proceeds of their crimes.
The legislation is complicated and draconian and essentially designed to recover criminal benefit. The ordinary rules of ownership do not apply and the defendant is in danger of being ordered to pay over the whole sum of his assets.
Benefits of Criminal Activity
When determining the amount of benefit a particular individual has received as a result of crime, the court may be entitled to look at lifestyle and make certain assumptions.
If the lifestyle provisions apply then for the previous 6 years, all expenditure and acquisitions during that time may be assumed to form part of the benefit figure, this figure is unlikely to be reflective of the actual criminal ‘benefit’ and will often require the instruction of an accountant to establish the true position.
Once a benefit figure is determined then the onus is on the defendant to provide details of his assets this often involves argument as to ownership and values.
Determination and Enforcement
Once an order is made by the court a date for payment is set and a default period declared. If the order remains unpaid then enforcement proceedings will commence.
The serious crime Act 2015, now allows third parties to be involved in the proceedings, this means that partners of the defendants can now exercise their rights and potentially make claims of their own in the criminal court arena.
At Farleys, we can advise and assist at any of the above stages.