The Proceeds of Crime Act 2002 is a far reaching and extremely detailed piece of legislation. Its aim was to ensure that those involved in criminal conduct did not benefit from their actions. It sought to achieve that in two main ways: by enhancing the powers of the criminal courts to recover the proceeds of criminality from those convicted of criminal offences, and to give the state the power to recover illegally obtained assets even where no prosecution had taken place.
The Act covers the whole UK, but it is subdivided into different parts for each of the individual jurisdictions. The provisions covering England and Wales are similar, but not identical, to those for Scotland.
In criminal cases, the benefit of criminal conduct can be confiscated. Normally the link between the crime and the benefit is obvious – if someone robs a bank, they have to pay back the money they stole. However, the legislation recognises that sometimes the link can be more opaque. When someone is convicted of a ‘lifestyle’ offence (for example drug trafficking), the court is entitled to look at their finances over a six year period, and identify any apparent gaps between legitimate income and accumulated assets. This is a complex process that normally involves evidence from forensic accountants.
Where there has been no criminal prosecution, the state (in the form of the Civil Recovery Unit, CRU, an agency of the Scottish Government that is closely connected to Crown Office) can make an application to ‘recover’ property obtained by criminal conduct. Such applications are made to the civil courts, and the civil rules of evidence apply. While the CRU still has to prove the property came from criminality, it doesn’t have to do so by corroborated evidence, or to prove the matter beyond reasonable doubt. It simply has to satisfy the court on the lower, civil, standard of balance of probabilities. Importantly, it is not essential to prove who committed the crime – it is enough to show that the property came from criminality.
The legislation is highly technical. Because relatively few Scottish cases have made it to the appeal courts, there has been little in way of judicial interpretation. It should not be assumed that the state’s interpretation of the provisions will be the correct one.
A notable example of this followed the UK Supreme Court’s decision in R v. Waya. That was an appeal against a confiscation order made following a criminal conviction in the English courts. There was much discussion about how the benefit from the crime should be calculated, and hence how much should be confiscated. The trial judge, the Court of Appeal and the Supreme Court all came to different conclusions; the Supreme Court itself did not manage to reach a unanimous view. What was clear, however, was that the legislation needed to be interpreted in a way that respected the human rights of the accused, including the right not to have property arbitrarily removed. Any interference had to be proportionate. The decision had a major impact on the calculation of confiscation orders in criminal cases. However, while it expressly considered the part of the Act dealing with criminal prosecutions, it is at least arguable that it also has an application to civil recovery cases. That point remains to be clearly decided by the courts.
With any case under the 2002 Act, it is vital to have strong and effective representation. Cases can have profound implications, and it is essential to have assistance from a firm that understands and has experience of the complexities of the process.
Livingstone Brown has dealt with many Proceeds of Crime cases, such as criminal confiscation cases where there is a challenge to expert evidence; civil recovery where there is a dispute over whether the property came from criminal conduct; applications to vary or exclude property; challenges to disclosure orders; and many more besides.
Livingstone Brown is a 'top-tier' rated firm for both fraud and general criminal work in the Legal 500 directory, the only firm in Scotland to achieve this dual rating. Stuart Munro and Gerard Brown are recommended lawyers in the directory. If you need specialist advice on your case, call us on 0141 429 8166 or complete on our online contact form.
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