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More Victories for the Reilly Brothers

  • RCJJames Reilly was instructed to represent a scrap metal dealer at Bolton Crown Court, due to his expertise in waste recycling matters and, in particular, British Telecom and Rail Cable. The charges faced included attempting to handle stolen goods and S.327 POCA. After a seven-day trial, our client was acquitted by a jury in just one hour and ten minutes!
  • Sean and James Reilly also represented a client at the Court of Appeal in a S.327 POCA matter. Our client had previously pleaded guilty after having had an application to stay proceedings refused. As the prosecution had put their case on the basis of suspicion and the Court of Appeal had previously ruled in another case dealt with by Lewis Nedas in January 2014 that suspicion is not enough. Our client’s conviction was duly quashed.
  • James Reilly represented a client convicted at the Magistrates’ Court of an offence of S.39 common assault for an appeal against the conviction at Isleworth Crown Court. The facts of the case were that our client had been out in Central London in December 2013 when he and a friend had their drinks spiked. They could not remember what happened, however they were removed from a bar and it was alleged that they had assaulted a member of staff and resisted arrest. On arrest, our client asked the police to give him a blood test at the police station, and asked to see the CCTV from the bar. The police, however, lost the CCTV and refused to give our client a blood test in the police station. James argued that there had been an abuse of process in this matter and was successful in his submissions. The appeal against conviction was allowed and our client was very happy.
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  1951 Hits
1951 Hits

LNL in Important Court of Appeal Decision Regarding Section 327 of the Proceeds of Crime Act 2002 & Attempted Money Laundering

RCJThe Court of Appeal held that for the purposes of a count of attempted money laundering, proof of a mental element of suspicion does not suffice.

The Court was critical of Police handling of this case, and it would seem that there are a number of similar prosecutions in the pipeline across the country concerning the scrap metal industry.

The judgement, which is very clear and comprehensive, makes interesting reading.

James and Sean Reilly were the instructing solicitors; the superb John Reilly of Counsel represented our client. The co-defendant was represented by Morgan Rose solicitors and the excellent Alex Stein of counsel.

This case is just another example of the firm's expertise in POCA cases.

If you are facing an allegation under POCA please contact us on 0207 387 2032 or complete our online enquiry form here.

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  3577 Hits
3577 Hits

Confiscation Update: January 2013 – by Miles Herman

confiscationRegina v Fields and others [2013] EWCA Crim 2042; [2013] WLR (D) 440

It was inevitable that, following the ruling in R v Waya [2013] 1 AC 294, the Court of Appeal would face the challenge of hearing appeals concerning proportionality and joint benefits.

One such appeal decided on in November 2013 was R v Fields and others. This was a joint benefit case, and the main two points were summarized in the judgment in the following way:

  1. Where two or more conspirators have been judged to have been co-principal conspirators who have jointly obtained the benefit of the proceeds of the conspiracy, is the benefit obtained by each of them, for the purposes of the POCA 2002, to be valued in a sum equalling the full amount of the proceeds of the conspiracy? Or – as the appellants argued – is the value of the benefit to be attributed to them in rateable shares?
  2. Alternatively, if the benefit is properly assessed in the whole amount with regard to each of them, and assuming that each has realisable assets matching or exceeding the benefit, is – as the appellants argued – the amount of the confiscation order to be apportioned between them in each case rateably in order to avoid a disproportionate outcome?

The Court posed the question: is there anything in Waya to displace what has been settled law as to the ascertainment and valuation of benefit in cases where there has been a finding of joint benefit?

The Court concluded there is nothing to be found in the decision of Waya to support the appellants’ arguments. Waya was not a case concerned with property jointly obtained. It was a case where the defendant had acquired a property with the partial assistance of a loan secured by a charge procured by fraudulent representation. The Court concluded that was a wholly different situation from the present case and it does not have any bearing on the present question of attribution or apportionment of benefit as such.

The Court concluded that, where there has been a finding of jointly obtained benefit, that benefit is to be valued in the whole amount of the property so obtained in respect of each individual defendant. There is no room in such a case of joint benefit for the ascription of ‘beneficial shares’ to each of the defendants for the purpose of valuing their benefit. The Court were clear in their findings that if apportionment is appropriate at any stage, that should happen when determining the recoverable amount in which the Confiscation Order is made in each case at the final stage.

Consequently, the Court of Appeal firmly drew the conclusion in joint benefit cases that each defendant had been found to have obtained the joint benefit and so was not required by a Confiscation Order to disgorge any benefit he had not obtained. This was consistent with R v Waya and other recent authorities, which overall indicated that a Confiscation Order made in the amount matching the correctness of the benefit was not to be classified as disproportionate. The Court went on that if a Confiscation Order was apportioned at this stage there was a real risk that ultimately the Order would not be satisfied in full. It would therefore be unsatisfactory in a negation of the finding of joint benefit for one defendant to have avoided paying up to the full amount of the proceeds obtained simply by reason of the other defendant thereafter failing to make any payments. The object of the 2002 Act as to the making of Confiscation Orders, put simply, was not geared only to recouping the loss of the loser; rather the aim was geared towards removing from criminals the proceeds of their crimes.

Practitioners should be familiar with this and other authorities, and can expect the arguments to run and run and quite probably be argued in higher courts in the not too distant future.

Regina v Padda [2013] EWCA Crim 2330; [2013] WLR (D) 496

On 12 December 2013, the Court of Appeal decided that Section 22(4)(a) of the Proceeds of Crime Act preserved an obligation on the Court and a discretion to make a Confiscation Order that is just, and in so doing it could take into account all relevant circumstances in favour of maximizing the recovery of the proceeds of crime, even if recovery would then take place from legitimately acquired assets.

In the matter of R v Padda, the Court originally made a Confiscation Order of £9,520 on 22 September 2006. When the Court made the original Order, it did so after consideration of the available realisable assets at the time that Order was made. In May 2012 the Court made a Restraint Order against the defendant and his company in order to secure funds to enable a reconsideration of the amount available for a revised Confiscation Order of Section 22 of the Proceeds of Crime Act 2002. The Court, during the initial Confiscation Hearing, had concluded the defendant had benefited from his offending to the extent of £156,226.74.

Clearly, there had been a material change in the appellant’s financial circumstances from 2006 until 2012. The Court concluded that the judge making the Orders could take all relevant circumstances into account when deciding the issue, and had to take into account the legislative policy in favour of maximizing the recovery of the proceeds of crime even from legitimately acquired assets as was argued in this case. The judge at the Court of Appeal concluded he had taken the proper course in the Order he made and his Order was neither wrong in principle nor manifestly excessive.

This case should be considered carefully by all practitioners when advising their clients as to the nature of Orders that are made at the time the original confiscation proceedings take place, and that in certain circumstances Courts can make further Orders such as Restraint Orders or further findings in relation to recoverable property many years after the original Order was made, even if monies made subsequent to criminal activity taking place and subsequent to the original Confiscation Order being made were obtained legitimately by the defendant.

We at Lewis Nedas are committed to taking a proactive approach to all confiscation matters and we pride ourselves on the many outstanding outcomes achieved for clients in recent times. If you are facing a confiscation enquiry, whether it be matters relating directly to the above or any issue relating to this area of specialist work, do not hesitate to contact us on 0207 387 2032 or complete our online enquiry form here.

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  2424 Hits
2424 Hits

Yet another Hidden Asset Result for Confiscation Team

Lewis Nedas Law Partner and Confiscation expert Keith Wood achieves yet another outstanding result for their client.

LN Law were instructed by their client in the summer of 2010 when the client became dissatisfied with the team that had been in place when he had entered a guilty plea to number of offences of VAT fraud.

The initial team had advised the client to settle the case on the basis that he had access to assets valued over £650,000. Our client, however, was adamant that that did not reflect his position and so sought to contest the stance adopted by the Prosecution. Before LN were consulted, the Prosecution then changed completely their starting point and were now intent on arguing that the client had hidden assets and wanted the Court to order that the entire amount generated under the scheme was to be paid back, which by now had risen to in excess of £22million.

The landscape had shifted massively. By adopting this position, if the Judge were to determine that the client had access to or controlled any asset over what he had declared, then the whole amount of £22million was payable and, if not paid, a default term of up to 10 years would be added to the sentence currently being served. The stakes at play could not have been higher.

The team had an enormous task, as much of the expenditure had been undertaken in cash, meaning that with little or nothing in the way of a paper trail, proving this was going to be tough.

Lewis Nedas assembled a formidable team: Jason Sugarman from 9-12 Bell Yard, noted for his skill in complex fraud and confiscation, and Philip De Nahlik from Begbies Traynor to analyse and report upon the available financial data.

The team worked amazingly well and each brought something fresh to the table. Over time and with much investigative work, we were ready for the hearing.

The evidence was called, and our client and expert Philip De Nahlik gave evidence to the Court about the expenditure.

Having heard five days of evidence, and with the benefit of Jason Sugarman’s careful submissions, the Judge finally ruled on the last working day before Christmas that we had persuaded the Court that there were no hidden assets and that we had accounted for the expenditure.

A great and well deserved result.

The importance of this case shows that by utilizing the right people and the right team you can successfully defend confiscation proceedings. All too often defendants are advised by their teams to accept ‘deals’ that they really ought not to. If you are ever in this situation then call our POCA team for their expert representation.

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  2281 Hits
2281 Hits

Another top result for our criminal lawyers: POCA money laundering allegation acquittal

Further to our recent announcement about Unan Choudhury's witness intimidation acquittal, we are pleased to announce that Unan also successfully defended a grandmother, accused of POCA / money laundering offences. A succesful legal submission in the early stages of trial, that there was no case for her to answer, secured her immediate acquittal.

Contact Lewis Nedas Law's money laundering defence lawyers for specialist legal advice today.

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  2786 Hits
2786 Hits

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