A person only has a criminal lifestyle (S75) if the offence satisfies one or more elements of the test:
1. It is specified in schedule 2
2. It constitutes conduct forming part of a course of criminal activity; and /or
3. It is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence
The criminal lifestyle test is not satisfied unless the defendant has obtained benefit of at least £5,000 in the cases of (2) and (3), however, the value of any TIC’s in respect of offences started on or after 24 March 2003 will count towards this sum. TIC’s in respect of offences committed before 24 March 2003 will only count towards the sum £5,000 in respect of conduct forming a course of criminal activity based on at least two previous convictions on separate convictions over the last six years. (Section 75(3)(b)).
A few of the schedule 2 specified offences are as below:
* Money laundering
* Drug trafficking
Offences to be taken into Consideration (TIC) – Whenever a person is being interviewed at a Police Station about an offence he admits committing such he may be further questioned about other crimes known to the police but unresolved which bear some similarity to the other one he is questioned about. At that stage or by his own will the suspect can admit responsibility for any number of such offences.
Normally TICs will be offences of similar nature to the ones already appearing on the indictment.
General criminal conduct
This is all of the defendant’s criminal conduct. It is immaterial whether the conduct occurred before or after the passing of the Act or whether property constituting a benefit was obtained before or after the passing of the act (section 76(2)).
Particular criminal conduct
Section 76(3) sets out the definition of particular criminal conduct and it includes the offence(s) of which he or she was convicted, any other offences of which he or she was convicted in those proceeding and offences will be taken into consideration when deciding his or her sentence.
The court will determine the recoverable amount based upon its finding as to the value of the defendant’s property.
Third parties can become involved if they are the recipients of ‘tainted gifts’. The term ‘gift’ includes a sale at a significant undervalue as at the date of transfer.
The definition of ‘tainted gift’ depends upon whether or not the defendant has a criminal lifestyle. A gift can be tainted before or after the commencement of POCA.
If the defendant has a criminal lifestyle and has therefore benefited from his general criminal conduct, it will be a gift made by the defendant
* At any time in the period beginning six years before the date of commencement of proceedings; or
* At any time it can be shown to be property obtained as a result or in connection with general criminal conduct or which (wholly or partly and directly or indirectly) represented the defendant’s hands property obtained as a result or in connection with his general criminal conduct.
If the defendant does not have a criminal lifestyle and the court is therefore concerned with calculating his or her particular criminal conduct, it is a gift made by the defendant at any time after the date on which the offence was committed and this will be the earliest date if there are two or more offences.
At SJ Law, we can help defend you for any confiscation issues which may arise as a result of your conduct. We pride ourselves with being the best criminal lawyers and have defended many confiscation cases successfully.
The main points of the scheme are:
* The defendant is committed for sentence and/or for consideration of a confiscation order, or is convicted in the Crown Court
* The prosecutor asks or the court considers it appropriate to consider making a confiscation order
* The court then decides whether the defendant has a criminal lifestyle
* If he or she does not have a criminal lifestyle the court calculates the benefit from general criminal conduct using the assumptions
* If he or she does not have a criminal lifestyle, the court will calculate the benefit from particular criminal conduct
* The court determines the recoverable amount
* The defendant may prove that he or she cannot pay the recoverable amount, but can pay the ‘available amount’. If the defendant is able to prove this, then the recoverable amount will be equal to the available amount
* The court must then make a confiscation order in the recoverable amount
* If the court makes a confiscation order in the available amount, it must include a statement of its findings and set out how it arrived at that amount
* If a victim has, or intends to start civil proceedings in respect of criminal conduct, the court has a discretion to decide whether or not to make an order
* On the application of the prosecutor, the court may, if it thinks appropriate, make a confiscation order against a defendant, who has absconded. In the case of a non-convicted defendant, the defendant must have absconded for a period of at least two years
* When the defendant ceases to be an absconder, the court may vary the order
* Whether or not a confiscation order has been made, the prosecutor may apply within six years of the date of conviction for the court to reconsider, where there is evidence which was not originally available to the prosecutor
* Both the defendant and the prosecution have a right of appeal against the confiscation rulings.
Statement of Information
If the court decides to proceed with the confiscation, then the prosecutor must when directed by the court, serve upon the court and the defendant a statement of information as soon as practicable.
Content in all cases
The information in the statement is provided by the financial investigation officer from his enquiries and should include:
* A signed declaration by the person making the witness statement to the effect that the witness statement is true to the best of his knowledge and belief and that he made the
statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true
* The name of the defendant
* The name of the person by whom the statement is made and the date on which it is made
* Where the statement is not given to the Crown Court immediately after the defendant has been convicted, the date on which and the place where the relevant conviction occurred.
Content where criminal lifestyle
The statement should include information that the prosecutor believes is relevant in deciding whether the defendant has a criminal lifestyle, whether he or she has benefited from his or her general criminal conduct, and the extent of the benefit from such conduct.
Content where no criminal lifestyle
If the prosecutor does not believe that the defendant has a criminal lifestyle, the statement of information is a statement of matters that the prosecutor believes are relevant in deciding whether the defendant has benefited from his or her criminal conduct, and details of the extent of the benefit from the conduct.
Consider the defendants response to the statement of information
if the prosecutor has given a statement of information to the court, by virtue of section 17 POCA, the court may order the defendant to indicate in writing the extent to which he or she accepts each allegation in the statement, and so far as he or she does not accept the statement give particulars of any matters he or she proposes to rely on.
If the defendant fails to comply with an order of the court he or she may be treated as accepting every allegation contained in the statement except any allegation in respect of which he or she has complied with the particular requirement, or any allegation that he or she has benefited from his general or particular criminal conduct.
If the defendant accepts an allegation, the court may treat that as conclusive in respect of the matters to which it relates. However, no admission that the defendant has benefited from criminal conduct is admissible as evidence in proceedings for an offence.
Consider whether to ask the court to make a Disclosure Order
At any time during confiscation proceedings the court may, for the purposes of obtaining information to help it carry out its functions, order the defendant to disclose such information as the court may specify, and provide that information in the manner and within the time the court directs, this is demonstrated by Section 18 of POCA.
If the defendant fails, without reasonable excuse, to comply with the court order the court may draw such inference as it feels appropriate.
If the prosecutor makes confiscation order against you, you can call us and speak to our specialist confiscation lawyers who can assist you with this and ensure we secure the best possible result.