Every Confiscation Solicitor probably now knows, or should know, that the Confiscation provisions of the Proceeds of Crime Act 2002 were meant to be Draconian. The Police loved the new powers introduced under the Act which were designed to ‘take the Cash out of Crime.’
Early interpretation of the manner and extent a person convicted of a crime was deemed to have ‘ benefited ‘ from a Crime thus rendering himself liable to have that amount confiscated was indeed harsh and resulted in some horrendous , unrealistic and frankly unfair Confiscation Orders being made against defendants.
It was not uncommon for the full amount defrauded in complex multi defendant cases to be claimed back numerous times over from each defendant. The part played by each defendant in a Conspiracy, even if miniscule and backed up by a signed, sealed basis of plea, was scoffed at by the Prosecutors grabbing all the assets they could in a Courtroom Supermarket Sweep that would have shamed even Dale Winton, not to mention the Police Financial Investigators competing for the Double Counting World Cup under the ‘Criminal Lifestyle ‘ provisions ( Gloucestershire Constabulary won it ).
However in R-v- Allpress & Others [2009] EWCA Crim 8 the Court of Appeal finally applied some common sense and reigned in the madness. Effectively the Judgement in Allpress meant that the joint and several approach used to establish criminal liability in the substantive Conspiracy was inappropriate in Confiscation Proceedings and the Court should only be interested in the actual benefit gained by an individual defendant. Further, Allpress is good law for the principle that a mere courier or custodian of cash or other property is not deemed to have benefited by that amount.
Unfortunately it appears Financial Investigators the length and breadth of the country appear not to have read Allpress or conveniently forgotton to apply its principles in their submissions to the courts. The fact this is still happening some 2 years after the judgement is disgraceful and would amount to an attempt to pervert the course of justice if it wasn’t acquiesced to by inept Defence Lawyers paying mere lip service to their clients cases.
Ashcott Solicitors have been instructed in 2 such cases in 2012 where the Crown appear surprised that we have taken issue with their misguided approach.
Will Southcott Confiscation Solicitor outlined ‘Our Defence responses have now been filed indicating the Crowns approach is flawed and unlawful and we now await the Judges preliminary ruling, suffice to say it is clear the Crown in each respective case were expecting to bank an easy quarter of a million pounds and a couple of nice houses. Unfortunately they might actually have to work for a living now.’
To be continued …………..
