Confiscation – challenging the prosecutor’s s16 statement

Legal wig copyright David Winch 2014How should the defence challenge the prosecutor’s assertions concerning the defendant’s benefit and available amount?

The prosecutor’s s16 Proceeds of Crime Act 2002 statement is a key document in confiscation proceedings.  In preparing the s16 statement the prosecution will have considered the offence(s) of which the defendant has been convicted; the evidence at trial (or readied for trial where there has been a guilty plea) and other information collected during investigation of the offence; information provided by the defendant in any statement under s18 or in response to any requirement in a restraint order under s41(7); information obtained from banks and others (perhaps by way of a production order under s345); and the results of the prosecution’s own investigations – probably undertaken by an accredited financial investigator.

 

Variety

Prosecution s16 statements are prepared in a wide variety of circumstances.  No two s16 statements will be the same – though they all have some similarities.  In any event the s16 statement will need careful study.  Typically the body of the s16 statement will run to between 10 and 30 pages with supporting appendices which could run to several hundred pages, and may include spreadsheets.

The s16 statement is likely to include some background narrative which sets the confiscation proceedings into context, including a description of the court proceedings resulting in the conviction and any restraint order which has been obtained.   There may also be information about the defendant (date of birth, previous convictions, etc) and information about his known legitimate income.

The defence legal team will wish to challenge any incorrect factual assertions in that narrative – but this narrative background is not at the heart of the s16 statement.

 

Financial investigations and ‘benefit’

The s16 statement will then move on, probably providing some details about the financial investigations undertaken by the prosecution and their findings about the defendant’s financial affairs.  That leads to the prosecution assertions about the defendant’s ‘benefit’ for confiscation purposes.

In this context ‘benefit’ has a special meaning based on the statutory provisions – it does not refer to what might be the defendant’s benefit in the everyday sense of the word.

 

‘Benefit’ of the offences

The first element of the defendant’s ‘benefit’ which the s16 statement will deal with is the ‘benefit’ of the offences of which the defendant has been convicted, sometimes referred to as the ‘direct benefit’ or the ‘benefit of particular criminal conduct’.  Here the prosecution are considering what the defendant ‘obtained’ as a result of the offences of which he has been convicted in the proceedings which triggered the confiscation.

This may be very easy to establish.  If the defendant has been convicted of, say, stealing a cheque for £10,000 payable to someone else and paying it into his own bank account then the ‘benefit’ of that offence is £10,000 (possibly uplifted for changes in the Retail Prices Index since the date of the theft).

But in many cases the ‘benefit’ of the offence will be less clear cut.  For example there may be theft of cash where there are inadequate records to quantity the amount of cash stolen, or supply of controlled drugs where there are no records of the monies received for the drugs, or the defendant may have been a member of a conspiracy (meaning it will be necessary to ascertain the amount ‘obtained’ by this particular defendant in his role in that conspiracy).

In rare cases the ‘benefit’ may be based on the profit deriving from fundamentally legitimate business operations which have been tainted by criminality, as in the case of R v Sale.

The ‘benefit’ asserted by the prosecution may also include assets which need to be valued, such as controlled drugs seized at the time of the defendant’s arrest.

In other cases the ‘benefit’ may be based on a ‘pecuniary advantage’ arising from the evasion of a liability – for example evasion of income tax, VAT or duties on goods.

In a minority of cases the prosecution may not be asserting that the defendant has obtained any benefit at all from the offences of which he has been convicted.

 

Assumed ‘benefit’

If the prosecution assert that the defendant has a ‘criminal lifestyle’ then the s16 statement will also deal with additional assumed ‘benefit’ which arises under the statutory assumptions of s10 PoCA 2002.  The statutory assumptions apply to the defendant’s receipts and expenditures since the ‘relevant day’ (which is usually 6 years prior to the date on which the defendant was charged with the offences of which he has been convicted) and to any assets held by the defendant since the date of his conviction.

Typically the prosecution will have obtained bank and credit card statements for all known bank and credit card accounts held by the defendant and will have reviewed all deposits to those accounts since the ‘relevant day’.  They may also have information about the defendant’s expenditures since the ‘relevant day’ – for example as a result of examining documents seized from searches of the defendant’s premises or considering information provided by the defendant in recorded interviews or in his s18 statement.  In addition the prosecution may have obtained Land Registry records or solicitors’ conveyancing files regarding property purchases, and mortgage account statements.

These same sources of information may be the basis for assertions of assumed ‘benefit’ in respect of any assets held by the defendant after the date of his conviction.

 

‘Available amount’

Finally the prosecutor’s s16 statement will deal with the defendant’s ‘available amount’.  Again this is a term defined by statute which does not mean simply the amount which the defendant has available to meet the confiscation order.  It refers to the current market value of the defendant’s assets, less any mortgage or other liability which is secured on those assets, plus the current value of any ‘tainted gift’ which the defendant has made.

However many of the defendant’s liabilities, such as unsecured borrowings and unpaid bills, will be ignored when computing the defendant’s ‘available amount’.

 

Default sentence

The s16 statement may conclude with an indication of the range of default sentences applicable where a confiscation order remains unpaid.

 

Challenging the s16 statement

The defence will wish to scrutinise in detail the prosecution assertions in relation to both the defendant’s ‘benefit’ and his ‘available amount’.  The focus of the defence challenge to the prosecutor’s figures will depend very much on the details within the s16 statement.

In relation to the ‘benefit’ of the offences of which the defendant has been convicted the defence will wish to consider the existence of the asserted ‘benefit’; whether it has been ‘obtained’ by the defendant himself, solely or jointly; and whether it is correctly valued.

Regarding the assumed ‘benefit’ the defence will wish to consider whether the criteria for a ‘criminal lifestyle’ have been met; whether the ‘relevant day’ has been correctly identified; the existence of the asserted receipts, expenditures and assets of the defendant himself (which may involve careful consideration of bank accounts and assets held in joint names and consideration of ‘lifting the corporate veil’); any evidence of the legitimate nature of those receipts and legitimate funds used to finance those expenditures and the purchase of those assets; any overlap or double counting between the various heads of asserted ‘benefit’ including, for example, where monies have been withdrawn from one of the defendant’s bank accounts and paid in to another; and the valuation of the various items reflected in the assumed ‘benefit’.

In relation to the asserted ‘available amount’ the defence will again consider the existence of those assets; the ownership of them by the defendant himself so as to exclude any interest of third parties; the current market value of those assets; and the amount of any liabilities secured on those assets.

Particular difficulties may arise where the ‘available amount’ is said to include any ‘tainted gifts’ or ‘hidden assets’.

Ultimately the defence will also wish to consider whether the use of the statutory assumptions involves a ‘serious risk of injustice’ or the confiscation order sought by the prosecution would be disproportionate and so infringe the defendant’s human rights.

All of these matters will feed in to the drafting of a s17 statement to be signed by the defendant and filed in response to the prosecution’s s16 statement, and the defence preparation for the confiscation hearing in the Crown Court.

 

Use of a forensic accountant

A forensic accountant may be able to assist the defence in challenging a number of aspects of the s16 statement.  This is likely to be particularly important in cases involving ‘assumed benefit’ under the ‘criminal lifestyle’ assumptions.  A forensic accountant may be better placed than the solicitor to undertake detailed examination of the figures and financial documents underlying the prosecution’s s16 assertions.

The cost of a forensic accountant’s report will normally be met by criminal legal aid under prior authority arrangements.

As a first step it is advisable to ask the forensic accountant to provide a fee quotation (to be forwarded to the Legal Aid Agency with an application for prior authority).  In order to prepare his quotation the forensic accountant should ideally be provided with a copy of the body of the prosecutor’s s16 statement, an approximate page count of the appendices to that statement, a copy of the defendant’s s18 statement, any advice which may have been obtained from counsel in relation to the s16 statement, and a note of the court timetable for the submission of the defendant’s response in the form of a s17 statement.

Where the appendices to the s16 statement include spreadsheets it is usual to ask the prosecution to supply electronic copies of the Excel spreadsheets (not the PDFs) either on disc or as email attachments.

Once the prior authority has been obtained the forensic accountant’s work can get underway!

David

(Note: This article applies to confiscation proceedings under the provisions of Part 2 of the Proceeds of Crime Act 2002 in England and Wales. There are a number of additional issues which could be relevant to a defendant’s confiscation proceedings in particular cases which it is not possible to deal with in a relatively short article such as this. Appropriate professional advice should be sought in each individual case.)

11 thoughts on “Confiscation – challenging the prosecutor’s s16 statement”

  1. Very helpful article!

    Could you however clarify in a situation where a criminal lifestyle is being asserted, whether property owned or purchased for longer than the six years period can be considered criminally obtained?

  2. Nabeel

    Where the defendant has a ‘criminal lifestyle’ and, after the date of his conviction for the offence(s) which form the basis of the confiscation proceedings, he holds an asset (such as an interest in a residential property) then the current market value of that asset is assumed to be a ‘benefit’ of his.

    Take an example. John bought a house in 1980 for £20,000 in London. He still owns the house and lives in it. Its value today is £300,000. There is no mortgage on the house. A year ago John was convicted of possession of cannabis with intent to supply. John is now subject to confiscation proceedings. John has a ‘criminal lifestyle’ as he has been convicted of an offence listed in Schedule 2 PoCA 2002. His assumed benefit will include £300,000 in respect of the house he owns.

    Of course the assumption may be rebutted by being shown to be incorrect.

    David

  3. Hello David,

    Thank you for that clarification. It does however seem rather absurd that, such as in the example you gave, a property being purchased such a long time ago as 1980 can be considered to be ‘benefit’ of a crime committed 30 years down the line.

    It must be almost impossible for an individual to be able to prove, especially considering common practise is to keep documentation for 6 years. Surely this infringes on an individuals human rights?

    Nabeel

    1. Nabeel

      Obviously the example I gave was constructed to demonstrate a point. As I said in my original response the assumption may be rebutted by being shown to be incorrect.

      As I have explained in more detail in another article on this blog, it is also the case that the court should not make an assumption where that would involve a serious risk of injustice.

      Whether there would be a serious risk of injustice in any particular case will depend upon all the circumstances.

      Also you are not correct in suggesting that the property would be assumed to be a benefit of the crime committed 30 years later. The property would be assumed to have been obtained as benefit of (unspecified) crime committed by the defendant in relation to his ‘criminal lifestyle’.

      David

  4. I was convicted of a fraud in 2007 to the sum of £36k. Recently though all my assets have been frozen as they are ‘revisiting’ the confiscation order. I received an inheritance payment three years ago which was the money in the account frozen by the courts. Can this money be taken off me seven years after the offence even though I can prove the source of the new funds and that they have nothing to do with the offence?

    1. The short answer is ‘Yes’. Where a confiscation order has been made in the amount of the defendant’s ‘available amount’ (which was less than his benefit) the prosecution can apply to the court, at any time, for an order under s22 Proceeds of Crime Act 2002 requiring the defendant to pay a further amount where he has a current ‘available amount’ which would enable him to satisfy a new order – but he may not be required to pay an amount more than the court believes to be just. In that sense a confiscation order may be regarded as a ‘life sentence’.

      For more discussion of s22 revisits see this post.
      David

  5. Your advice please sir
    We have 6 defendants involved in confiscation proceedings due to their conviction in a drugs conspiracy. The total benefit figure given was £800,000. 5 of the 6 defendants agree figures between £70,000 and £190,000 to give a total amount agreed between them £782,000.
    The last defendant does not agree and goes ahead with confiscation hearing.
    At the hearing, the total benefit figure was reduced to £650,000. The 6th defendant was smacked with the full benefit figure of £650,000.
    But a total benefit amount of £782,000 has already been agreed between the 5 other defendants.
    Is this possible, since it would amount to double counting.
    your comments would be most appreciated.
    Regards
    Ash
    Ash

    1. Ash
      I think perhaps you misunderstand the situation. It seems that the total benefit was £800,000 (initially) but was reduced to £650,000. It also seems that none of the individual defendants has a benefit figure in excess of £650,000. So there is no inconsistency between the individual benefits and the £650,000 total.

      It would have been legally possible for the court to have concluded that all six defendants jointly obtained all of the benefit. In that event each of them would have had a benefit of £650,000. In fact it seems five of them were found to have benefit of much less than £650,000. It was open to the court to agree that.

      The next issue is how much has each person been ordered to pay? And the next issue is how much has each person actually paid?

      As soon as a total of £650,000 (the total of the jointly obtained benefit) has actually been paid (plus any interest for late payment) the court should not collect any further payments from any of the six defendants.

      So each defendant needs to find out how much the other defendants have actually paid.

      David

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