The Home Affairs Parliamentary Committee concluded in July 2017, that Government and prosecution authorities are simply not doing enough to secure the proceeds of crime, from those convicted of crimes, and those who have managed to evade prosecution.
Focusing upon those convicted of criminal offences, over £1.61 billion remains outstanding from Confiscation orders made by the Courts, albeit 1/3 of that sum represents penalties and interest for non payment of those orders. As a result, The Law Commission has turned his attention to the issue and will report in October 2017.
In truth, the SFO and FCA have a much better record as far as recouping the proceeds of crime are concerned, certainly better than police forces, CPS and the NCA, that is probably because they have relatively well resourced specialist teams of lawyers and financial investigators.
Another possible explanation is that those convicted of financial crime and fraud often have easily identifiable assets, when compared with those convicted of drugs or people trafficking offences.
There have been substantial changes to the POCA regime, as embodied within this years Criminal Finances Act 2017 re Sar reports and Unexplained Wealth Orders (please see our blog: Unexplained Wealth Orders : a new tool for seizing proceeds of crime 12/4 2017 – newsroom section on our website).
The CFA 2017 brings in new disclosure orders including the requirement of a third party to disclose information as required and amendments to SAR regime.
All POCA regulated firms can now share information with other such regulated firms where there is a suspicion of money laundering.
The NCA will now be able to extend the moratorium period to six months and the Magnitsky Clause within the CFA allows non–conviction recovery powers to include assets obtained by a gross abuse of human rights.
Additionally, The Home Office and The Attorney Generals Office have just closed a consultation on 25/09/2017 which will focus upon the following discreet areas:
- Powers to search, seize, and detain property
- Exercising investigation powers under POCA 2002
- Using search powers to recover criminal cash
- Powers to seize identifiable listed assets
- Prosecutors guidance on the operation of POCA investigation powers
- Exercise of various new seizure, detention and forfeiture powers under the CFA 2017 (Criminal Finances Act)
The FCA is also considering criminally prosecuting firms/individuals for anti money laundering failings – see their business plan for 2017/2018.
They are keen to also establish 0PBAS (Office for Professional Body AML Supervisors), which will oversee (and enforce) obligations under new AML Regulations.
How can we help you?
We have one of the leading specialist POCA defence teams in the Country; we advise those facing POCA proceedings and those immediately affected by such orders e.g. third parties, business partners and co Directors.
Our team includes specialist White Collar/Corporate Crime defence teams, highly ranked by the leading Legal ranking directories and are highly experienced when dealing with these proceedings, including AML, taxation, bribery and corruption, market offences, and have a genuinely in depth knowledge of Prosecution agencies policies and behaviour.
A number of other firms of lawyers have Dispute Resolution Departments comprising of corporate litigators and young barristers that deal with this field and are relative newcomers to this area of law. Not us, we have been dealing with these issues since the enactment of POCA 2002 and believe in early pro active defence, an approach which has proved to be very successful.