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poca restraint
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  1. POCA s75 (2) a criminal lifestyle test 1 what are schedule 2 offences?
    • drug trafficking
    • s327 or s328 money laundering not s329
    • people trafficking
    • arms trafficking
    • counterfeiting
    • intellectual property
    • pimps / brothel
    • blackmail

    includes  - attempt, conspiracy, incitement, aiding, abetting, counselling.
  2. crim lifestyle s75 (2)(b) - test 2 (for non-sch 2 offences)?
    course of criminal activity test, either

    current proceedings  - 4 or more offences from which benefited - total is not less than £5000

    or

    convicted current proceedings offence which have benefited plus other convictions benefited, on at least two separate occasions, within 6 years current proceedings started.  Total benefit must be £5000 or more
  3. Criminal lifestyle test 3
    convicted offence committed over period of time of at least 6 months and benefited not less than £5000
  4. Criminal lifestyle assumptions - who decides? How many?
    if court decides criminal lifestyle they must make 4 assumptions
  5. POCA s10 (2) what is first assumption?
    Any property transferred to A at any time, after relevant day,  was a result of criminal conduct, & was obtained the earliest day they appear to held it.

    Relevant day - first day 6 years before proceedings (earliest).
  6. POCA s10 (3) second assumption
    property held after date of latest conviction was obtained as a result of criminal conduct
  7. POCA s10 (4) third assumption?
    any expenditure after relevant day met from property obtained as a result of general criminal conduct
  8. POCA s10 (5) fourth assumption
    any property obtained was obtained free of other interests (e.g. charge, HP)
  9. POCA s10 (5) court must not make assumptions - when? (rebuttal)
    if shown to be incorrect 

    serious risk of injustice if made
  10. court decides not to make assumption - they must...? s10 (7)
    s10 (7)  state reason for not making any assumption
  11. Section 93: Recoverable amount ?
    defendants benefit from conduct concerned (general criminal conduct minus pre-existing order)

    The amount of the accused's benefit from either his general criminal conduct or his particular criminal conduct

    • unless the amount available less than the benefit, - the order must be made in that
    • lesser amount.
  12. S 95 - Available amount?
    The available amount is the value of all the accused's property minus certain prior obligations of the accused such as earlier fines, plus the value of all tainted gifts made by him.
  13. Priority obligations
    fine or court order prior to confiscation order has priority
  14. Tainted gift - not criminal lifestyle
    • 1. made after time of offence 
    • 2. if two or more offences after earliest offence
    • 3. if continuing offence made after date of first occasion offence was committed
  15. Tainted gift - criminal lifestyle
    1. any time after six years before proceedings commenced. 

    2. made at any time was obtained as a result of, or in connection with their general criminal conduct

    3. whole / in part / directly / indirectly property obtained as a result of or in connection with their general criminal conduct
  16. Restraint - who can apply?
    prosecutor 

    FI
  17. Restraint - where? Limits?
    Crown court, no limits
  18. restraint before start of proceedings?
    Yes if real risk of dissipation
  19. Restraint applies to what property?
    all realisable property, includes

    • cash
    • any realisable property transferred after order made
    • any unknown property
    • criminal lifestyle -restrain from dealing with any or all of property, or particular benefit
    • applies to property any where in world
  20. POCA s45(1) power to seize - restraint, who?
    • constable 
    • HMRC officer
    • accredited FI 

    to prevent removal from England and Wales - any realisable property
  21. Realisable property?
    • Free property
    • defendant holds or given to another
    • not cash seized under s294/295
    • inc business as sole proprietor or their share

    free = not subject to forfeiture, deprivation, recovery order etc
  22. Limited company included?
    • separate entity
    • only if Judge lifts corporate veil 
    • evidence partly / wholly used for criminal purpose 
    • decision can be reversed 
    • lack of corporate records assists
  23. Company records requirements?
    • transactions financial position 
    • balance sheet - assets  / liabilities
    • profit  / loss 
    • accounting records - in's and out's
    • PLC £12,500 share capital 
    • limited - £2
  24. How is a managenent receiver appointed?
    S48 POCA application to court to appoint the receiver -- therefore effectively officer of the court although initially instructed by the applicant.
  25. what powers can a management receiver have?
    • take possession
    • manage or deal with
    • start, carry on, or defend legal proceedings
    • realise as much property  necessary to meet their own renumeration and expenses
    • enter premises to search for / inspect (court confer)
    • make obtain copy, photo or other record (court confer)
    • removed anything authorised to take
  26. When can you apply for restraint order?
    reasonable cause to BELIEVE benefited from their criminal conduct.

    and after

    criminal investigation has been started

    proceedings started but not concluded or

    application from prosecutor reconsideration where no order made
  27. Restraint - recalculation?
    restraint order can be made when;

    • application to reconsider benefit or
    • application to reconsider available amount

    reasonable cause to believe court will recalculate
  28. Application for restraint by accredited FI?
    authorised under s68 (3) by senior officer -

    • police - supt
    • HMRC - officer designated by commissioners
    • accredited FI designated secretary of state s453
  29. a restraint order may not be obtained..
    if court believes undue delay in proceedings

    or

    prosecutor does not intend to proceed prosecution or confiscation.
  30. article 1 protocol 1 European convention on human rights
    protection of property
  31. what are s41(3) exceptions / provisions to a restraint order?
    • 1) reasonable living expenses
    • 2) reasonable legal expenses
    • 3) enable person to carry on trade, business, profession or job

    1 - £250 / week guidelines
  32. Who can vary restraint order?

    and how?
    person who applied for the order

    anyone affected by the order

    in writing and accompanied by witness statement
  33. Appeal process for person affected by restraint?
    any person affected can appeal to the court of appeal and further route to House of Lords
  34. Prosecutor or investigator appeal if restraint not granted?
    Appeal to the Court of Appeal

    - can confirm decision of lower court

    - make the restraint order applied for

    - make any other order it deems appropriate
  35. When is there compensation in restraint?
    court may order for serious default in relation to restraint if all of following

    1) no conviction / quashed / pardoned

    2) serious default by individual was reason stopping proceedings

    3) person holding realisable property suffers loss as a result of restraint
  36. Who serves restraint and when?
    FI serves restraint on defendant asap after court grants it

    copy or original plus copy of investigators statement

    third parties also served - eg banks

    certificate of services returned to court within 7 days
  37. Statutory instrument 2011/1709
    where can be served electronically general rule is that it will be.

    • a) service by handing over
    • b) handing to senior person in corporation
    • c) handing to rep when legally represented
    • d) prosecution by handing to or rep
    • e) court officer with authority
    • f) court officer with auth at criminal appeal court

    Person U18 - parent, guardian or appropriate adult
  38. Service by post?
    address where reasonably believed person will receive it

    corporation - principal office, if not any address carries out its business

    legal representatives office

    prosecutor / court officer / appeal - their office - DX unless said no
  39. Electronic service?
    if supplied electronic address, themselves or representative - and not refused this method

    no need for paper copy
  40. When is date of service?
    • left at address - next business day
    • first class post - second business day
    • DX - second business day after left
  41. Under POCA, confiscation is mandatory and the court must proceed to confiscation if ?
    conviction of an offence from which they have benefited before the Crown Court

    or is convicted mags and is committed to the Crown Court for sentence.

    or is convicted mags and committed to Crown Court for confiscation order

    and

    The court is asked to proceed by the prosecutor

    or the court believes it is appropriate to do so.

    The duty of the Crown Court to proceed with confiscation is mandatory unless the court believes that a victim has instituted, or intends to institute, civil proceedings against the defendant then - the duty becomes a power.
  42. Confiscation court procedure stage 1?
    • Stage 1
    • A) Court must first decide whether the defendant has a criminal lifestyle.

    • Stage 2
    • B) If criminal lifestyle -  the court must then
    • decide whether the defendant has benefited from their general criminal conduct.

    • Stage 2
    • C) if they have benefited, the value of that benefit using the four assumptions

    • Stage 2
    • d) No criminal lifestyle - have they have benefited from their particular criminal conduct?
  43. Confiscation court stage 2
    Stage 2 - what is recoverable amount?

    • make an order requiring the defendant to pay that amount
    • Take account of that order before  
    • imposeing a fine on the defendant
    • making an order involving payment other than compensation 
    • forfeiture order s27 MDA 1971
    • order  s143 of the Powers of Criminal Court Sentencing Act 2000
    • forfeiture  Terrorism Act 2000

    confiscation orders have absolute priority over any other financial penalty except for compensation.
  44. confiscation stage 3 at court?
    Once a confiscation order has been made, the court must state a sentence in default, should the defendant fail to pay.
  45. Powers of Criminal Courts
    (Sentencing) Act 2000 section 139(4) default sentences

    amount not exceeding £200?
    7 days
  46. postponement of confiscation
    • confiscation upon conviction and prior
    • to sentence but can be postponed

    • on application by the defendant
    • on application by the prosecutor
    • or if the court believes it is appropriate

    If either the prosecutor or defence require time to present their case in relation to confiscation proceedings, the court may set out a timetable specifying the dates when prosecutor’s statements and defence responses are to be served + setting date for the confiscation hearing.

    may not be postponed for more than two years from the date of conviction unless there are exceptional circumstances 

    • defendant appeals against conviction, the postponement must not exceed three months from the date the appeal is finalised (if outside the two-year
    • period) unless exceptional circumstances

    If proceedings are postponed, the court may sentence the defendant but must not impose any fine or other financial order on them.

    • A confiscation order cannot be quashed just because there has been some defect in
    • the postponement procedure
  47. what is s9 available amount?
    • The available amount is the value of all the defendant's property, minus
    • certain prior obligations of the defendant's such as earlier fines, plus the value of all
    • tainted gifts made by the defendant.
  48. s7 recoverable amount
    • benefit from either
    • his general criminal conduct
    • or
    • his particular criminal conduct

    • unless the amount available for confiscation is considered by the court and found to
    • be less than the benefit in question, in which case the order must be made in that
    • lesser amount.

    the amount actually ordered to be confiscated as the recoverable amount
  49. What are tainted gifts?
    • where the court has decided that the defendant
    • has a criminal lifestyle, any gift made by the defendant to any person in the period
    • beginning six years before the commencement of proceedings is caught, together with
    • any gift made at any time out of the proceeds of crime. This is relevant both at the
    • confiscation hearing and for the purposes of enforcement. If the court decides that the
    • defendant does not have a criminal lifestyle, only gifts made since the beginning of
    • the earliest of the offences committed are caught

    plus transactions at less than value
  50. Defendants who Abscond?
    • a defendant absconds when has been convicted in the Crown Court or committed to the Crown Court for sentence or confiscation
    • OR
    • Proceedings for an offence have been started against the defendant and not concluded (un-convicted) and once 2 years have elapsed from the day that the court
    • believes the defendant absconded.

    • Crown Court must, if requested by the prosecutor, proceed to confiscation. 
    • However in these circumstances the confiscation will be limited to the defendant’s
    • particular criminal conduct, without the use of any assumptions
  51. Reconsideration after proceedings concluded?
    • The first three are:
    • 1 -the court did not proceed to confiscation and no confiscation
    • 2 -order was made (POCA section 19);the court proceeded with confiscation, but found no benefit from either general or particular criminal conduct and so no confiscation order was made (POCA section 20)
    • 3 - confiscation order was made, but the prosecutor believes the benefit is greater than that calculated at the time (POCA section 21).

    • provided that there is new evidence that was not available at the time and the application is within six years of conviction, the court can proceed with confiscation,  make a confiscation order where none was made, or increase the benefit and make a confiscation order, or increase the benefit and adjust the confiscation order
    • accordingly.

    The court cannot apply the assumptions in relation to any property obtained after the date of conviction.

    • 4 confiscation order was made, but the prosecutor believes that the available  amount is greater than that calculated at the time (POCA section 22).This may happen where comes into possession of assets after the confiscation process is complete but where there was a shortfall between the
    • benefit and the available amounts.

    the new assets may become liable to confiscation and the court may proceed as above.

    • Application may be made at any time after conviction (i.e. the ‘within six years of
    • conviction’ restriction does not apply)
  52. Disclosure notices - relevant authority?
    The relevant authority is defined under section 357 (7)(a) as the prosecutor.

    prosecutor may be:

    • A member of SOCA’s staff
    • The Director of Public Prosecutions
    • The Director of Public Prosecutions for Northern  Ireland
    • The Director of the Serious Fraud Office
    • The Director of the Revenue and Customs Prosecutions

    Any person specified by an order of the Secretary of State.
  53. Disclosure notice - appropriate officer
    • Section 378(1) of POCA 2002, as amended, gives the definition of an appropriate officer
    • as:
    • member of SOCA’s staff
    • accredited financial investigator
    • constable
    • customs officer (HMRC).
  54. s358 requirements for disclosure notice?
    • Reasonable grounds for suspecting that the person specified has benefited from criminal conduct
    • and
    • Reasonable grounds for believing that the information  requested is likely to be of substantial value (whether or not by itself)
    • to the investigation
    • and
    • Reasonable grounds for believing that it is in the public interest for the required information to be provided. 
  55. Disclosure notices - the order and offences?
    authorises the appropriate officer to give to any person considered to have or hold relevant information about a confiscation investigation, written notice requiring him/her to

    • Answer questions at a specified time
    • and place

    • Provide information at a time and in a
    • manner specified in the notice

    • Produce documents at a time and in a
    • manner specified in the notice.

    • The only exceptions to the material provided are where there is any privileged material
    • subject to the terms of the order.

    The order, can be in force for the length of the investigation.

    • Two offences are created in respect of this order under section 359:
    • Failure to comply with the order (summary offence)
    •  Providing false or misleading statements in response to an order (summary or indictable offence).
    • offences on summary conviction six months and/or a fine. On indictment max two years imprisonment and/or a fine

    Other methods of obtaining the required information must be considered or tried prior to applying for a disclosure order.
  56. Civil recovery?
    The bulk of part 5 is however concerned with S.240 (1)(a) 

    SOCA will consider referrals from any law enforcement agency of cases The referral forms are available on FISS. 

    • Prosecution is not viable 
    • Prosecution has failed
    • Confiscation  is not viable
    • Confiscation  has failed

    • There is no lower limit in monetary terms but proceedings in the High Court can be very costly and time consuming, it follows
    • that small value cases are unlikely to be pursued.

    Unlike the criminal confiscation processes the civil provisions of part 5 allow for investigations to go back for 12 years, in addition there are taxation powers which can go back for 20 years
  57. Financial reporting order - conviction for which offences?
    • Fraud
    • Deception
    • POCA lifesytle
    • Common law
    • Conspiracy to defraud
    • Bribery
    • Tax etc
    • Bribery  / corruption
    • Proceeds of Crime Act 2002
    • Terrorism Act 2000
    • Theft Act1968
  58. Default sentence -

    > £200 to £500
    14 days
  59. default sentence order not exceeding £200?
    7 days
  60. Default sentence >£500 to £1,000
    28 days
  61. Default sentence

    >£1,000 to £2,500
    45 days
  62. Default sentence

    >£2,500 to £5,000
    3 months
  63. Default sentence

    order >£5,000 to £10,000
    6 months
  64. Default sentence

     order >£10,000 to £20,000
    12 months
  65. default sentence

    >£20,000 to £50,000
    18 months
  66. default sentence

    order >£50,000 to £100,000
    2 years
  67. order >£100,000 to £250,000
    3 years
  68. order >£250,000 to £1 million
    5 years
  69. order > £1 million
    10 years
  70. When is confiscation order payable?
    A confiscation order is payable as soon as the order is made unless the defendant can show the court that they need time to pay
  71. Time extension for payment of confiscation order?
    the court may extend the time to pay for up to six months from the date the order is made.If the court believes there are exceptional circumstances then it may extend to maximum 12 months.  The defendant may apply to the court at any time after the confiscation order is made, but not after 12 month period has elapsed.  Time to pay should not be granted unless the prosecutor has been given the opportunity to make representations
  72. After what date should POCA be used?
    24 March 2003
  73. Benefit - gross received or profit?
    gross received
  74. Criminal conduct?
    Criminal conduct is defined as:

    constitutes an offence in any part of the UK or, if the conduct occurred elsewhere, would constitute an offence in any part of the UK if it occurred there
  75. difference for criminal conduct overseas for money laundering v confiscation?
    • for money laundering
    • overseas activity has to be offence in both countries

    • confiscation
    • overseas activity has to be offence in UK

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