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Facing POCA proceedings
- Mar 4, 2020
- Latest News
If you are a new prisoner (or representing one), and just starting your sentence for a drug related or financial crime, it is highly likely that you are now facing Proceeds Of Crime Act (POCA) proceedings. If this is the case, you need to act now by ensuring that you are represented by a firm of solicitors with a dedicated and specialist POCA Department.
In my experience, POCA proceedings are often seen as far more complex than the index offence and require a very different approach to defending them, because a confiscation order can have far more serious consequences than your current custodial sentence itself and can impact on a person for the rest of their life.
POCA is a very specialist and niche area of law and it is therefore vital that you instruct a specialist lawyer. Here at Blackfords LLP there is a dedicated POCA team who can guide you through this complicated process to get the very best result for you. Each of us has been ranked in both Legal 500 and Chambers and Partners for our expertise in this area.
At your sentence hearing it is likely that a POCA timetable was fixed with several orders being made that certain documents have to be served on various dates. It is likely that at this stage no detailed explanation will have been given to you about these documents, so I will now attempt to explain the basics of the proceedings.
In simple terms, the proceedings involve 3 documents – namely a Section 18 statement, a Section 16 statement, and a Section 17 statement.
The Section 18 statement is a declaration of assets and is based on a pro-forma questionnaire provided by the Court in which you have to answer a number of questions about employment history and bank accounts etc. and sets out what your current assets are. Although it is an important document, it is nowhere near as important as the Sections 16 and 17.
The Section 16 statement is prepared by the Prosecution and sets out to what extent you have benefitted from your criminality and what is available to pay off this amount. It therefore consists of 2 separate figures; namely the benefit figure and the available amount. The benefit figure is made up of two distinct calculations; namely the Particular Criminal Conduct and the statutory assumptions – which is probably the most important figure in the whole proceedings.
It is impossible in such a brief article to set out how this figure is calculated and why it is so important, however I cannot stress enough how vital it is that this figure is challenged properly and thoroughly, and this is done so within the Section 17 statement which is your document in response to the Section 16 and sets out your case in full.
The Section 17 statement requires a huge amount of preparation and should be very detailed, in which you address every aspect of the Crown’s case, but more importantly in accordance with case law should have ‘clear and cogent’ documentation to back up any of the statements made. For example, it is not enough for you to say that certain monies are not the proceeds of crime but were earned legitimately. You have to go beyond this and prove it with documentary evidence, all of which has to be included in your Section 17 statement.
Again, it is impossible to explain the nuances of a Section 17 statement within this article, but suffice to say I will do everything to prove your case and prepare a detailed Section 17 statement along with all the necessary witness statements, valuations, expert reports if necessary; so that when the matter goes to the final POCA hearing your case is fully prepared.
Our Section 17 statements have been praised highly by both Counsel and the Courts and the team will work tirelessly and diligently to ensure that any final order made can be paid by you to avoid a default sentence.
It is possible to obtain a transfer of legal aid from your trial solicitors but the sooner the better as the court is less likely to make a transfer order once the pocket proceedings are under way – so I would suggest that you contact me as a matter of urgency so that we can discuss representing you.