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 or Keith Wood.
