Thursday, August 04, 2016
When do the lifestyle provisions apply in confiscation cases?
The Proceeds of Crime Act 2002 (POCA) is a draconian piece of legislation which was originally drafted to try to stop serious criminals gaining large amounts of money from their criminal conduct. Unfortunately, since 2002 POCA has been increasingly used to penalise defendants in all manner of cases in which many people would be surprised to find that POCA orders can be made.
For example, agencies such as the Environment Agency, the Medicines and Healthcare Regulatory Agency and Local Councils often pursue defendants for monies under the confiscation regime. Often these case are quasi regulatory matters such as breach of planning controls and in such cases the defendants can face losing significant sums of monies.
One of the avenues in which monies can be gained from defendants above and beyond that which they may have gained from their particular criminal conduct is via the ‘lifestyle’ provisions contained within s6 of POCA.
Defendants are often rightly concerned over the ramifications of POCA and commonly asked questions include: ‘what is a criminal lifestyle?’ and ‘how do lifestyle provisions apply?’
The benefit under POCA
For the purposes of POCA, somewhat counter intuitively, it does not matter what is gained in terms of monies or property that is actually kept or profited from. What the court regards as benefit is the money or property which passes through someone hands, the turnover. POCA orders can also be made over and above the actual amount that a defendant profited from their criminal conduct. Benefit is considered in two ways under POCA- general and particular criminal.
Particular criminal conduct is the benefit specifically gained from the offence which which the defendant has been convicted. For example, if a drug dealer sells £2,000 worth of drugs his benefit from Particular Criminal Conduct will be £2,000. This will be the case regardless of how much he purchased the drugs for or how much profit he made.
General criminal conduct or ‘criminal lifestyle’ will apply if any of the gateways under s75(2) of POCA apply.
The effect of general criminal conduct can be devastating. Under the lifestyle provisions a reverse burden of proof exists- where the defendant has assets or credits to his account those must be explained as having come from a legitimate source otherwise they will fall to be confiscated.
For example, if the lifestyle provisions apply and the defendant has a £3,000 cash credit to his bank account, unless the defendant can prove where that cash came from and that the cash came from a legitimate source, then the sum of £3,000 will be added to the benefit figure.
So how do POCA lifestyle provisions apply? The gateways are found under s75(2) of POCA and they are somewhat complex. If you have any concerns over whether they apply you should contact a Proceeds of Crime specialist lawyer to consider the facts of your case.
In short, s75 gives a number of gateways for the Court to find a criminal lifestyle for a defendant, a criminal lifestyle will apply if any of the following apply:
Gateway 1- if the offence which the defendant has been convicted is is specified within Schedule 2 of POCA, these are specific offences such as s327 money laundering, production or supply of drugs etc. To see if a specific offence falls under schedule 2 of POCA the act needs to be consulted;
Gateway 2- if the criminality ‘constitutes conduct forming part of a course of criminal activity’. For a defendant to be part of a course of criminal activity he must be:
- convicted of 3 or more other offences at the same time as the one in which POCA falls to be considered OR
- he has been convicted of 2 offences from which he has benefitted in the last 6 years
- For the purposes of this ‘gateway’ the defendant must have benefitted to the tune of at least £5,000.
Gateway 3- if the offence was committed over a period of at least six months and the defendant has benefited over £5,000 from the offence.
There is a significant body of authorities in respect of the application and interpretation of each of these gateways and there are many tactical approaches to cases in which the gateways can be avoided.
A defendant who finds themselves accused of a criminal offence should always have the question of proceeds of crime confiscation at the forefront of their mind. I have seen may cases where defendants have come to me concerned that the effect of the POCA proceeds have far outweighed that of the index criminal offence of which they were convicted. If POCA is considered from the start, then a case can be planned and conducted with the provisions of the act firmly in mind.
If you find yourself accused of a criminal offence and are concerned about the ramifications of POCA or if you find yourself in a position where you have been convicted of a criminal offence and are concerned about the provisions of POCA you should seek the best barrister for POCA available to advise you in respect of how the act effects you.
Quentin Hunt is a defence barrister with an enormous amount of experience in acting for defendants in respect of all aspects of POCA. He well regarded as a successful specialist in this area. You may contact Quentin for a free no obligation conversation about your case.