Confiscation, Restraint Orders & Receivership

Under the Proceeds of Crime Act 2002 (POCA), the prosecution can use confiscation proceedings to seize the proceeds of crime from individuals and companies convicted of a criminal offence.

The confiscation regime is highly draconian and can result in defendants being ordered to pay far more than the value of the crime for which they have been convicted. In some cases, the law requires the Court to assume that all assets, including money and property, held by the defendant in the previous 6 years, are the proceeds of crime unless the defendant can prove otherwise.

Stokoe Partnership Solicitors’ confiscation lawyers have the experience and expertise to deal with this hugely complicated area of law. We have good relationships with leading barristers and accounting experts to ensure that the best possible advice and strategic guidance is given from the outset, in order to secure the best possible outcome for our clients. We are used to dealing with the highly complex cases – both legally and factually – where the prosecution is seeking confiscation of hundreds of millions of pounds in relation to assets in multiple jurisdictions.

In order to maximise the potential value of a confiscation order, the prosecuting authorities will often try to obtain a pre-trial restraint order against a defendant to prevent them disposing of their assets in advance of trial. Applications will often be made ex parte (without notice to the defence) and are often made prior to a defendant even knowing that they are going to be arrested.

Our confiscation lawyers act swiftly and effectively to ensure that our clients and their families have sufficient funds to meet their needs and that their businesses are able to continue to trade effectively. We are known for giving pragmatic and strategic advice from the outset and using sensible negotiation with the authorities or, if necessary, litigation in order to protect our clients’ interests.

Our confiscation lawyers are used to advising and representing individuals and companies in relation to:

• Contesting confiscation proceedings
• Drafting confiscation statements and statements disclosing assets
• Representing innocent third parties (both individuals and companies) with interests in property that is subject to confiscation proceedings against other defendant individuals or companies
• Resisting applications for restraint orders
• Applying to vary and discharge restraint orders (including urgent / emergency applications against orders which have been made ex parte)
• Resisting applications to appoint administrative or management receivers
• Appeals against confiscation orders
• Applying to vary or discharge confiscation orders (both in the Crown Court and in the High Court by way of application for a certificate of inadequacy) on the basis of a change in circumstances
• Enforcement proceedings where clients are at risk of serving a default sentence for non-payment
• Disclosure orders
• Contempt proceedings for non-compliance
• Repatriation of assets
• Realisation of assets to meet confiscation orders (including in other jurisdictions)

The firm’s expertise in serious crime, fraud and white-collar crime is recognised by both of the UK’s leading legal directories, The Legal 500 and Chambers & Partners. The Chambers & Partners guide lists Stoke Partnership as a ‘Recognised Practitioner’ for POCA Work and Asset Forfeiture.

Notable cases

We represented a client who was said to have played a leading role in defrauding various financial institutions in obtaining fraudulent mortgage applications in respect of nine properties dating from 2004 to 2005. Our client was extradited to the UK to face these charges. He was identified as the UK’s ‘Most Wanted Criminal’ in Cyprus. Prior to extradition to the UK a total of 11 people faced proceedings spanning four separate trials and we acted for a number of defendants in these trials. The case involves a detailed analysis of complex financial structures, agreements and documents.

Represented two clients alleged to be drug barons who evaded capture for over a decade with estimated business turnover of £1 billion. On their arrest law enforcement authorities had seized over £5million in cash, which at the time was one of the largest cash seizures in the UK. After lengthy negotiations we were able to settle the case with a combined order of £2 million, instead of the £28 million hidden asset order the Crown originally sought.

Represented a client who was subject to confiscation proceedings following his conviction for the production of a class B drug. We were able to agree to a “full benefit” order being made against him in the sum of £411,555.98 as opposed to £4million originally sought by the Crown.

We represented this client who was subject to confiscation proceedings following his conviction for being concerned in the supply of Class A drugs. The Crown sought a full benefit order in excess of £1million. Following lengthy negotiations, the Crown agreed an order in the amount of £299,929.25 and our client avoided serving an additional sentence.

We represented a client following his conviction in his absence for drug offences. The Crown said he had benefited from his criminal conduct in a sum in excess of £14,000,000 and were seeking a hidden asset finding on the full amount of the benefit figure. We argued and settled the proceedings in the sum of £1.7 million (benefit) and a confiscation order in the sum of £68,243.

We represented a client in confiscation proceedings following his conviction in the highly publicised Hatton Garden Burglary. Following arguments, they accepted our client had not benefited from the burglary but sought a confiscation order by maintaining he had a criminal lifestyle. They relied on the Statutory Assumptions in respect of a property he had purchased in 2005 valued in excess of £350,000 and unencumbered.

We represented a client in confiscation matters dating back to 2008. The confiscation order was made under the DTA 1994 following the client’s conviction for offences committed in 2002, namely the importation of Class A drugs.

The case has traversed every Court involved in the confiscation process (Crown Court, Court of Appeal (“CACD”), The High Court, The Magistrates Court and the Criminal Cases Review Commission (“CCRC”)). The confiscation order was overturned by the CACD and a new order made. Following the amended order, further errors were identified and admitted by the Crown. We subsequently applied to the CCRC for a further review and referral to the CACD. The CCRC refused to refer the case back to the CACD and were of the view that this matter should go to the High Court (a course which we did not agree with).

The High Court subsequently agreed and confirmed they had no power and a further application was made to the CACD for the Court to exercise its inherent jurisdiction and reopen proceedings in exceptional circumstances to avoid an injustice. It was accepted by both parties that there had been an error in the original order made by the Court of Appeal. The Court of Appeal exercised its jurisdiction and duly amended the Order. Since the Order was amended, the Crown agreed not to seek to activate the default sentence in respect of the remaining sums owed under the Confiscation Order given the passage of time and the defendant’s particular personal circumstances (despite the client never having served his default sentence). The Crown have also consented to a certificate of inadequacy in respect of the remaining amount and the application is currently pending at the High Court.

We represented a City trader who was convicted of offences relating to the insolvency act. Having been made subject to a bankruptcy order, the client continued to trade, and was prosecuted on two separate occasions for concealing property from the Official Receiver. The client converted £129,000 by trading legitimately (an agreed fact) and generated a profit of £7.5 million over 3 years. Following his convictions and sentence, we were instructed to act for the client in the confiscation proceedings. The Crown sought a benefit figure of circa £9 million with realisable assets of £6 million. Following our instruction and a review of the case, together with a forensic analysis of the “trades”, we were able to negotiate a full settlement in the sum of £2 million.

Our client was one of the UK’s most wanted men and had featured in a special programme on Sky TV, which had been made in conjunction with the NCA. During confiscation proceedings, the Financial Investigator made enquiries in various jurisdictions (Spain, Holland and Turkey) and the Crown sought an Order in the sum of £2,668,004.50. After lengthy and protracted negotiations, we were able to persuade the Crown that the benefit figure should be limited to £878,269.50 and a confiscation order in the sum of £57,774.41 (with no hidden assets).

We represented our client post-conviction in regard to an international conspiracy importing cannabis to the UK to the value of £24 million. The Crown originally sought a confiscation order in excess of £24 million, which was based on the street value of the actual drugs seized together with an inference regarding the number of previous importations. Following our representations and a meeting between the parties a settlement was reached that the benefit figure would be reduced from £24 million to £966,000 and an order was made in the sum of £135,827.78 that represented assets held by a third party.

We represented our client who was subject to confiscation proceedings following his conviction for conspiracy to supply Class A drugs. In the confiscation proceedings the Crown asserted the benefit figure totalled £1,163,086.10 and assets which totalled £543,593.97. We successfully rebutted the majority of the assertions made by the Crown and negotiated a full benefit order in the sum of £70,000.00.

We act for this client following his conviction for drugs offences and a confiscation order in the sum of £1.2 million in 2006. Our client appeared at number one on SOCA’s most “toxic list” and was one of the first people in the UK to be made subject to a Financial Reporting Order which requires disclosure of income and outgoings to SOAC/NCA on a quarterly basis. An amendment made nearly a decade after the original order means our client does not have to pay further monies.

We were instructed in respect of pre charge restraint proceedings following arrests in relation to a multimillion-pound fraud against Transport for London. Following the arrests ex parte applications for restraint orders were made. We successfully made an application to discharge the Restraint Order as it affected our client. The Crown had erred in their continuation of the Restraint Order confusing the position pre charge and post charge and as against “third parties”.

We represented our client who was said to have played a leading role in a conspiracy to import Class B drugs. The conspiracy was said to involve the importation of in excess of one tonne of cannabis. In confiscation proceedings, the Crown asserted a benefit figure in excess of £2 million and hidden assets. Following the preparation and service of two detailed responses, we were able to negotiate a settlement with the prosecution for a benefit finding in the sum of £705,582.80 and a confiscation order limited to the value of his identifiable assets and thus ensuring the client did not have to serve a further term of imprisonment.

We represented our client who was said to be a principal participant in a sophisticated conspiracy to defraud with a total in excess of £1.5 million. The fraud, is described as a “vishing fraud”. In the POCA proceedings, the Crown originally sought a full benefit finding in the sum of £1,424,883.93 and alleged hidden assets as the majority of the monies generated by the fraud had not been traced. It was alleged the group had concealed assets abroad, principally in Pakistan and Dubai. Following a detailed analysis of the case and lengthy submissions made on our clients’ behalf, the Crown was persuaded to limit the Order to the full amount of his available assets, totalling £184,970.74.

We represented a former solicitor following their conviction in a conspiracy to assist unlawful immigration, money laundering and cheating the public revenue, following the conclusion of confiscation proceedings.

The Crown issued an application pursuant to s.22 POCA to increase the client’s available assets. Our detailed analysis of the documents resulted in written representations to the CPS alleging an Abuse of the Court process. After considering the representations and in particular the alleged abuse, the Crown withdrew their application.