Confiscation Orders are made after Poca proceedings have been finalised and they do not mean that the proceedings have come to an end! For further detail on confiscation orders, please follow this link.
Post Confiscation Orders and Future Proceedings.
Defendants must remember that a confiscation order is a lifetime order and therefore large benefit figures still need to be paid off at some stage in the future. This lifetime provision has important implications for "future assets" that may come into the hands of the defendant through employment, entrepreneurship, or inheritance; technically the confiscation order continues until it has been satisfied. Although most defendants will satisfy the confiscation order by paying the realisable asset figure, it should be remembered that the confiscation order is never satisfied until the benefit has also been paid off. This rule allows the authorities to come back to the confiscation order, especially if the defendant comes into some assets, to ask for the balance to be paid. There is a trend to revisit old confiscation orders and to identify whether any value is available in any of the assets that have been acquired since the making of the original confiscation order. We have received instructions about several these types of cases.
Once the realisable asset element of the confiscation order has been paid, defendants need to ensure that restraint orders that were previously imposed are discharged.
Confiscation Orders and Certificates of Inadequacy (s.23 Proceeds of Crime Act 2002).
Section 23 allows defendants to go back to the court to ask the value of assets to be reassessed, known as an application for a certificate of inadequacy. The application should be lodged after the making of a confiscation order and all the assets are sold and proceeds paid to the confiscation unit. Requests for inadequacy are made under Section 23 Proceeds of Crime Act 2002 and should be supported by evidence of the price sold and an explanation why the expected value was not realised. It is better to sell the asset at arm’s length to avoid any suspicion the asset has been sold at an undervalue. If an application for inadequacy is successful, then this will also have an impact on the default sentence that was initially imposed as that will also be reduced proportionately.
We have made many applications for inadequacy and can take on new cases to assist our clients.
Confiscation Orders and Reconsideration of Benefit (s.22 Proceeds of Crime Act 2002)
We have come across several cases where the authorities have sought to re-open confiscation proceedings on a re-assessment of benefit. Typically, proceedings have been re-instigated where the prosecution have come across new information which was not available at the time the original confiscation order was made or that the defendant did not disclose the exact extent of this assets when required to do so.
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