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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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Massive Cybercrime Network Dismantled

A recent international cybercrime investigation has resulted in the arrest of 44 members of a global credit card fraud network. According to Europol, the group's activities affected around 36,000 bank/credit card holders across sixteen European countries.

The EU is the world's largest market for payment card transactions and it is estimated that organised crime groups derive more than 1.5 billion euros a year from payment card fraud in the EU.

The group targeted recently, according to Europol, used sophisticated methods of stealing people's credit and debit card numbers and PIN codes by implanting card reading devices and malicious software on point of sale (POS) terminals in big shopping centres across Europe.

They then used counterfeit payment cards with stolen data for further illegal transactions, mainly in Argentina, Colombia, the Dominican Republic, Japan, Mexico, South Korea, Sri Lanka, Thailand and USA.

The members of the group also set up a sophisticated criminal network for online fraud.

Last week, 44 members of the group were arrested in an international operation, coordinated by the Romanian Cybercrime Unit in Romania, in close cooperation with Europol's European Cybercrime Centre.

The operation, called 'Pandora-Storm', resulted in the dismantling of two illegal workshops for producing devices and software to manipulate the terminals. It also caused the seizure of illegal electronic equipment, financial data, cloned cards and cash during 82 house searches in Romania and the UK.

Fraud Defence Legal Advice in the UK

For fraud defence and legal advice in the UK, please contact our fraud solicitors in London: contact Jeffrey 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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