As forensic accountants, we are often instructed as part of the defence for an individual who has been convicted of an offence which triggers confiscation proceedings under the Proceeds of Crime Act (‘the Act’).
The Act deals with a wide range of matters relevant to UK law on proceeds of crime issues which, at first glance, can be somewhat perplexing. The crux of the matter here is that the onus is on the accused to prove that they have not benefited by the amount calculated by the prosecutor… so not ‘innocent until proven guilty’ in this scenario!
The majority of cases that land on our desk starts with a Statement of Information produced by the prosecutor (‘SOI’). The SOI contains various tables of financial data, usually across a period of six years, and often a significant Benefit Amount, which can create panic for the accused.
We have worked on numerous cases and found that, with analysis and investigation, we are often able to reduce this Benefit considerably and reach an agreement with the Crown on a lower confiscation order.
Some of the reasons for this may be, the individual is self-employed and has failed to declare all of their income, or it is just unclear what the source of the income is at first glance. Sometimes, however, the income has been declared but has been omitted from the SOI prepared by the Crown, as further explanation is required. From a forensic accountant’s point of view, for the defence, there would seem to be an argument for getting involved in the preparation of SOIs at a much earlier stage.
Individuals defending these cases often find it difficult to justify certain lodgements or expenditure within their bank accounts, but with our expertise, the information and queries can often be put to the accused in a manner that allows them to recall what a transaction related to, even if it did take place more than six years ago!
We assist the accused’s appointed solicitor by preparing a court compliant report, presenting the information in a way to assist the Court in determining the level at which the confiscation order may otherwise be set.
An order is set at the lower of the Available Amount (the amount of assets identified as being owned by the accused at the time of the confiscation) or Benefit Amount. Should this order not be paid within the prescribed timeframe, the Court may impose a custodial sentence. The length of default sentences for non-payment of the order varies in line with the monetary value:
As confiscation orders are no longer extinguished after sentences for defaulting on payment are served, and with powers available for prosecutors to increase confiscation orders after they are made (based on the agreed Benefit Amount), we believe that it is important that such orders are thoroughly reviewed and challenged wherever necessary.
As the onus is placed on the accused to verify and agree the Crown’s findings, it is important that each schedule in the SOI, along with the supporting documentation, is scrutinised to identify any discrepancies.
The team of forensic accountants at Armstrong Watson have a wealth of experience in this field and a proven track record in assisting individuals to reach a fairer outcome under the confiscation regime.