If you do not pay a POCA confiscation order, you may be subject to enforcement action, including a fixed custodial sentence. If you are imprisoned for failing to pay, you will also still be liable for the outstanding debt plus interest.
However, if you are unable to pay a confiscation order or need more time to pay, there are steps you can take to help you manage the payment. In this article, we look at what happens when you are unable or unwilling to pay a confiscation order, and what we can do to assist you.
For immediate advice on confiscation orders, contact our Financial Crime Solicitors today.
What is a confiscation order?
The Proceeds of Crime Act 2002 (POCA) allows the prosecution to ask the Crown Court to make a confiscation order where it believes the defendant has benefited financially from criminal activity. If the prosecution applies for a confiscation order, this will be considered by the Court during the sentencing process. Therefore, you can only be subject to a confiscation order if you are convicted.
A confiscation order requires the convicted defendant to pay back any money they have acquired as a result of committing a crime. The crime itself must be an ‘acquisitive’ crime, which means you must have been able to make money from the offence. This includes fraud and other financial crimes.
How much will I need to pay under a confiscation order?
During sentencing, the Court will calculate how much you will be required to pay under the confiscation order. To do this, it will first look at the value of the property or monetary amount gained as a result of your criminal conduct. It is important to be aware that under certain circumstances, the Court may also include property or assets other than those directly related to the illegal activity in its calculations.
The Court will also work out the ‘available amount’, which is calculated by looking at your actual assets. For example, where you purchased property with the proceeds of your crime and this property has decreased in value, this will be taken into account.
You may be forced to sell your property and/or other assets to pay the confiscation order even where they were purchased with legitimate funds.
Furthermore, if you are convicted of an offence such as money laundering, the Court may decide that you have a ‘criminal lifestyle’. This allows the Court to look at any property purchased or money you have made over the last six years, and to assume that it has all come as a result of criminal activity. If this is the case, it is essential to have a team of experienced lawyers to help you protect legitimate business ventures and assets.
We can help you challenge the prosecution when it comes to setting out how much you profited from your crime, and how much you have available to pay back. This can be very difficult to prove but our lawyers are highly experienced in such cases and we will do all we can to ensure the confiscation order is fair.
What if I cannot pay a confiscation order on time?
If you cannot pay the confiscation order by the time it is due, you can apply for an extension. You may be granted an additional maximum of six months to pay, however you must be able to prove there are exceptional circumstances that prevent you from paying the money back on time.
Where you are genuinely unable to pay the amount detailed in the order – such as in the example above where you will make a substantial loss on selling your property – you can apply to the Court to have the order varied. To convince the Court to reduce the amount, you must be able to prove that you have no further assets left that could be used to pay.
What if I do not pay the confiscation order?
If you make the decision not to pay the amount set out in a confiscation order, and you do not apply for more time to pay or for a reduction of the order, interest will be added to the sum you are required to pay. Further, you may have to serve the ‘default sentence’. This is a fixed period of imprisonment that applies if you fail to pay. The length of the custodial sentence is determined based on the amount of the confiscation order.
We can help you no matter what stage of the confiscation proceedings you are at. We have experience in the procedural elements of confiscation orders and in working with the prosecution to find a solution for our clients.
Can I be forced to sell my property under a confiscation order?
You can be forced to sell your property, including property that third parties have an interest in. Where you refuse to sell your property to pay your confiscation order, the prosecution may apply to the Court to take control of the property and sell it on your behalf. If the police have seized property, this may also be sold to pay your confiscation order.
The practicalities of this are complicated and require specialist legal advice. We can also assist third parties, business partners and co-directors affected by confiscation orders to enforce their rights.
Contact Our Confiscation Order Solicitors, London
If you are facing confiscation proceedings, it is important to seek expert legal assistance without delay. An early and proactive defence will give you the best chance of securing a successful outcome.
Lewis Nedas is one of the leading specialist POCA defence teams in the UK. We regularly advise clients who find themselves the subject of POCA confiscation orders, as well as third parties immediately affected by such orders.
This process is highly complex and can be daunting. Our Confiscation Order Lawyers will provide you with clear advice and practical solutions that protect your financial interests.
To discuss your needs, please call us today on 020 7387 2032 or complete our online enquiry form.
