The relevant provisions appear at s.10 PoCA 2002, titled ‘Assumptions to be made in case of criminal lifestyle’.
The vast majority of confiscation applications proceed as ‘criminal lifestyle’ applications pursuant to s.16(3) PoCA 2002. As such, the vast majority of confiscation cases involve consideration of one or more of the assumptions.
There are four assumptions. The first and third assumptions relate to property transferred to and expenditure incurred by the Defendant after the relevant day. The second and fourth assumptions relate to property held by the Defendant after the date of conviction and the extent of the Defendant’s interest in that property.
The assumptions have the effect of reversing the burden of proof so that, in the case of the property transferred assumption, the burden will be on a Defendant to persuade the Court, to the civil standard (balance of probabilities), that the property transferred was not obtained as a result of general criminal conduct or that there would be a serious risk of injustice if the assumption were made. A Defendant can also cite proportionality issues in line with s.6(5) PoCA 2002.
The case law in this area is vast and variable and difficult to summarise concisely. The general thrust is that if the assumptions are applied correctly any resulting order is unlikely to risk disproportion or injustice.
It is immediately clear that the assumptions are far-reaching and consequential and that the protections available to Defendant’s are quite limited.
The difficulties and complexities in dealing properly with the assumptions cannot be overstated. These are compounded by prosecution lawyers and financial investigators who regularly misstate and misapply assumptions, for example by applying the ‘relevant day’ criteria to the second and fourth assumptions, thereby significantly extending their reach.
It is imperative that Defendants are represented by genuine PoCA experts.
James O’Hara and Paul O’Donnell are Solicitors in the PoCA and Financial Crime department at IKP Solicitors and regularly accept instructions to act in confiscation proceedings. James and Paul possess the necessary subject matter expertise to assist Defendant’s in defending the assumptions and compliment their expertise with a bank of trusted expert Counsel and consultants. Both are members of an elite group of Solicitors in the UK ranked by Chambers and Partners in the area of ‘PoCA Work & Asset Forfeiture’.