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Proving a Negative with Asset Confiscation Orders: The "Hidden Asset" Problem – by Siobhain Egan

For anyone facing a confiscation order, one of the most perplexing aspects is when the Crown start to speak about "hidden assets". This is not, strictly speaking, a legal term and from a defendant's point of view represents a particularly unfair element to confiscation proceedings.

The stakes are high because a "hidden asset" can mean serving an additional sentence in default.

What is the best way to deal with this issue?

The evidential burden falls on the defendant to prove to the Court on the balance of probabilities (the lower standard of proof) that s/he does not have hidden assets, i.e. that they have disclosed all and that their financial worth is less than the criminal benefit figure determined by the Court.

In truth, the process begins when either the original restraint order (if applicable) and the confiscation order is made.

Proceeds of Crime Act 2002 (POCA) and Asset Restraint

Under the Proceeds of Crime Act 2002 (POCA) the defendant has to complete a financial statement. It is fundamental that the statement is complete, frank and accurate. Even more importantly, the defendant must be sure to insist upon instructing specialist solicitors such as ourselves to help him/her.

It's important that from the outset that the defendant details all parties who may have an interest in any asset/sum of money, so that the Crown are on notice from the outset that there are third parties likely to be affected by these proceedings.

We have been defending both restraint and confiscation proceedings for many years. A large number of our clients instruct us after conviction when represented by other solicitors, and we are often recommended to defendants by other professionals because of our expertise.

We take a very pro-active approach which has been very successful. The key to our approach is thorough immaculate preparation, as well as working closely with forensic accountants (in complex cases) and specialist barristers. We also have a proven track record; our successes in this field are detailed in our "news "and "cases" sections on our website. Our specialist lawyers are all ranked in the various legal directories e.g. Super Lawyers UK, Chambers UK, the Legal 500.

To assist with the preparation of the case, we focus upon the expenditure incurred by the defendant when running his/her home/family/business, in fact we closely scrutinise ALL aspects of his/her expenditure.

Where did all the money go?

The real question to answer is "where did all the money go" over the given period of time.

We will chase clear audit trails, and pursue witnesses and as much confirming documentation that we can find to support the defendant's assertions about his/her expenditure, including pursuing such evidence in other jurisdictions.

The Crown just have to raise in court that that assets have in their view "disappeared" or perhaps been transferred to offshore accounts or placed in trust. They would also point to unexplained cash withdrawals from accounts as evidence of hidden assets.

If assets have suddenly been sold/transferred to others at reduced prices, that too would, in the Crown's view, point to "hidden assets".

Forensic Accountants & Reconstruction of Accounts

We have, as part of our defence of these proceedings, instructed forensic accountants to essentially re-construct accounts or businesses to show the patterns of earning and spending, to great success.

The work of our highly skilled specialist lawyers has attracted much positive comment from the Judiciary and other professionals alike.

This is a highly specialised area of law, not helped by very mixed and often contradictory case law so it's imperative to instruct lawyers who genuinely know their field.

The key to the issue of "hidden assets" is... preparation, preparation, preparation!

For advice on any of these issues regarding hidden assets or in respect of our asset restraint and confiscation legal services, contact Jeffrey Lewis, Jeremy Ornstin, Layna Thompson or Keith Wood.

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Government Reviews Police Cautions

The Government has announced the launch of a review into the way in which cautions are used by the police, in the wake of concerns that they are being used too readily.

There are two types of caution available at present for adults – simple cautions and conditional cautions:

  • A simple caution is an out of court disposal given by the police to adult criminals when specified criteria are met. It is designed to be used for low-level offending.
  • A conditional caution is an out of court disposal with set conditions attached to it with which the offender must comply. If an offender fails without reasonable excuse to comply with the conditions attached to a conditional caution he or she may be prosecuted for the offence for which the conditional caution was originally given. 

The review will focus on the use of cautions for repeat offenders and for those who commit serious crimes. In particular, it will examine:

  • existing guidance and practice relating to the use of simple cautions;
  • whether there are some offence types for which the use of simple cautions is generally inappropriate – and if so, what procedures should be adopted;
  • the reasons why multiple cautions are given to some criminals;
  • the difference in the use of cautions by different police forces and whether increased scrutiny is needed to ensure they are used consistently; and
  • the impact on individuals of accepting a caution including any potential impact on future employment.

The review is due to be completed by the end of May.

Contact our Criminal Lawyers in London

For specialist legal advice and criminal defence in the UK, contact our London criminal lawyers: please contactJeffrey Lewis or Siobhain Egan on 020 7387 2032 or complete our online enquiry form here.

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HMRC & Film Tax Partnerships: Important Update – by Siobhain Egan

Have you received either a telephone call or a letter offering settlement in respect of a film tax partnership from HMRC?

What should you do now?

Doubtless you will have seen all the publicity over the last 18 months or so about these tax partnership schemes. Whether it is tax tribunal decisions concerning Ingenious Media, Eclipse Film Partners 35, Patrick Degorce or even the recent prosecution which resulted in five criminal convictions relating to a movie that was never made (Landscapes of Lives)

You will know that HMRC are looking at all film partnership schemes set up in 2003/4 and 2005/06. They will gradually make their way through all schemes set up over the years, and they have a clear view that these schemes have been set up for the purposes of tax avoidance.

We are currently advising investors facing such difficulties; we work with leading tax counsel and specialist tax accountants and can give multi disciplinary advice.

Please see our full update on HMRC and Film Tax Partnerships here, together with contact details for our solicitors.

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Operation Elveden: a Real Cause for Concern? – by Siobhain Egan

Operation Elveden is the Metropolitan Police investigation into corruption primarily between the press and the police. It is a spin-off of Operation Weeting and is under the overall supervision of the IPCC working with the Crown Prosecution Service.

So far over 60 people have been arrested and have been on bail for lengthy periods, 12 of whom are now facing charges. This is an operation costing anything from £4.5 million to £5 million per annum.

However it’s the more recent developments which are causing us, as defence lawyers, great concern.

There are stories of journalists under surveillance. Journalists such as the Deputy Editor of the Sun, Geoff Webster, are in court today who have not been given full details of the allegations against them. The arrests of senior (former or otherwise) Police officers accused of giving information to the press where no money has change hands at all, such as the arrest of Frank Armstrong, former Assistant Chief Constable of City of London Police, apparently authorised by the IPCC with the involvement of the CPS (which the CPS denies).

There are already deeply disturbing after-effects of this Operation, journalists complain that they are unable to access informal information from police, whistle blowers within the police (and indeed in other public sector organisations) are too frightened to speak to the press because of fear of arrest.

Is this Operation out of control? Is it a question of poor management? Should the IPCC really be in overall control? This is an organisation with a poor track record and is under resourced as it is; one wonders whether they really have the expertise to manage such a large and important investigative operation.

Siobhain Egan is advising a former News of the World journalist who is on bail as a result of Operation Elveden.

Contact us for objective, robust, skilled defence advice.

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New drug driving offence

A new offence of driving or being in charge of a motor vehicle with a concentration of a specified controlled drug in the body above a prescribed limit is being introduced in the Crime and Courts Bill, currently making its way through Parliament.

Drug driving is a growing problem in the UK and, according to Transport Minister Stephen Hammond, is a factor in an estimated 200 road fatalities each year.

The Government commissioned a review of the law relating to drink and drug driving back in 2010 and has been working to tighten the rules since then. The focus of this latest change is on the fact that the existing law seems to be of limited effect in tackling drug driving.

Issues with the current law

At the moment drug driving is dealt with under Section 4 of the Road Traffic Act 1988, which makes it an offence to drive while unfit to do so through drink or drugs.

In practice, however, few prosecutions are actually brought and of those which are initiated, many are eventually thrown out or withdrawn.

This is because of the technical difficulty of securing a conviction for driving while unfit through drugs: to succeed, the prosecution needs to prove that the defendant was driving or in charge of the vehicle; that he was so impaired that he was unfit to drive; and that the impairment affecting him was caused by drugs.

New offence

The Government has therefore decided to introduce a new strict liability offence of driving with a controlled drug in the body – removing the need to prove impairment. This will mirror the position with drink driving, and will run alongside the existing Section 4 offence.

New defence

However, as Stephen Hammond said in a recent statement:

"We must ensure that the new offence would not unduly penalise drivers who have taken properly prescribed or supplied drugs in line with medical advice."

The Crime and Courts Bill therefore gives a defence to people who have driven after taking a controlled drug that has been prescribed or supplied "for medical or dental purposes." To succeed in the defence, that person must have followed the directions given for the use of the drug in question.

It's also worth noting that this defence will not apply to the "old' offence of driving while unfit to do so under Section 4 of the Road Traffic Act 1988. This will still be available to prosecutors.

What is a controlled drug?

The Crime and Courts Bill does not list which drugs will be regarded as controlled drugs, nor the limit of concentration at which they will bring the offence into play. These details are going to be dealt with in separate regulations, currently being developed by the relevant government ministers in England, Wales and Scotland.

However, technical advice on the identity of the specified controlled substances, and the maximum permitted levels of each, is already available. This comes in the form of a report from a specialist panel, published earlier this month.

According to Stephen Hammond, the Government hopes to consult on the draft regulations later in the year.

Contact us for legal advice

For specialist legal advice on any of these issues relating to driving under the influence of drugs or other motoring law issues, contact Lewis Nedas on 02073872032 or complete our online enquiry form here.

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