Confiscation and Restraint Orders

It is usual in fraud investigations and proceedings for assets to be made the subject of a restraint order during the course of the investigation and court prosecution, and for a confiscation order to be made on any conviction for a fraud or related offence. Any application for a confiscation order will usually be the subject of a contested hearing after sentence has been passed for the offence in question.

Confiscation Orders

Confiscation Orders are usually made under the Proceeds of Crime Act 2002 ("POCA 2002"), but older Orders may have been made under the Drug Trafficking Act 1994 (DTA 1994) or the Criminal Justice Act 1998 (CJA 1998).

If you are unable to satisfy the original Order, by the date set by the Court, you will face the prospect of going to prison for the default period set by the original Court. This does not wipe the debt and this will remain regardless of whether you serve the default period or not.

In certain circumstances, applications can be made to the Court for variation/discharge of the Order or what is known as a "Certificate of Inadequacy", if for example, the assets, when sold, did not realise the amount determined at the original hearing.

Under POCA 2002, an application to vary/discharge is made to the Crown Court that made the original Confiscation Order. If a Confiscation Order was made under the DTA 1994 or CJA 1998, the application is made to the High Court for a "Certificate of Inadequacy".

In certain circumstances, we may be able to appeal the original Order, if for example you do not have the realisable property which the court believed you had.

You will be able to apply for public funding (legal aid) for us to advise and represent you in relation to these proceedings.

Restraint Orders

Restraint Orders are utilised to freeze assets to preserve such assets for any future Confiscation Proceedings as part of the Criminal Process. Allowances may be made from an individuals assets to enable living and legal expenses to be met and such can be the subject of application to the Court.

Confiscation Orders follow convictions in cases where the Prosecution assert that benefit has been derived from the proceeds of crime. The Court will be required to make an assessment of the "benefit derived". It is important to understand that this may include the full value of assets alleged to have been obtained either wholly or partly from the proceeds of crime.

The Court will then make an Order based on the "benefit" figure unless it can be demonstrated by defendants that their "realisable assets" are lower in value than the benefit figure. A period of imprisonment will be ordered to be served in default of payment which term would be served additionally to any other sentence of imprisonment imposed in the proceedings.

 

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Charles Worthington
Director, VHCC & Civil Dept Supervisor
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