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What services our department offers
Our Department specialises in defending clients who are subject to Confiscation Proceedings, at all stages of the Confiscation Proceedings, and in relation to all types of offences. Confiscation Proceedings are predominately prosecuted now under the Proceeds of Crime Act 2002, however, Katie McCreath who heads up the Department also has extensive experience in dealing with the preceding legislation (Criminal Justice Act 1988 and Drugs Trafficking Act 1994). In relation to the areas detailed below, although we are primarily funded via Legal Aid, we have also accepted instruction from clients on a private paying basis and would be happy to discuss your funding options with you.
Our experience starts with the Pre-Confiscation Order Proceedings, which entails preparing the defence case both prior to service of the Prosecution’s case, and in responding to the Prosecution’s case, and our specialist preparations and knowledge have enabled the Department to achieve exceptional results for our clients. The Pre-Order Confiscation stage in its shortest form consists of:
Although previously, a third party who claimed an interest in an asset subject to confiscation proceedings of another person, had no standing in the Crown Court to be make a claim during the Pre-Confiscation stage of the proceedings, all that changed with the introduction of the Serious Crime Act 2015. This Act enables the Crown Court Judge, when making a Confiscation Order, to also make a determination on the extent of the defendant’s interest in any property, and the Crown Court Judge can hear representations from third parties during the substantive Confiscation Proceedings as third parties are entitled to seek their own legal representation and to introduce evidence relating to their claims.
The Court may issue a ‘Section 18A Order’ requiring a third party to provide certain information to the Prosecution and the Court regarding their claims to an interest in assets/property.
If you are a defendant in Confiscation Proceedings, we can assist you in identifying potential interested third parties who may need to seek legal representation in your Confiscation Proceedings.
If you believe you may be an interested third party, in relation to assets that are subject to the Confiscation Proceedings of another person and you would like to explore representation in those proceedings, please contact us to discuss your matter and to discuss your funding options for such representation.
Once a Confiscation Order has been made, we continue to represent our clients at the Post-Order stage of the Proceedings, which may include:
The Legal Aid Representation Order that covered your Pre-Order Proceedings remains in place to cover the Post-Order Proceedings.
Where we have represented a client during the Confiscation Proceedings Pre-Order stage and where Counsel identifies Grounds to Appeal the Confiscation Order, we will assist in lodging the Grounds for Appeal against Confiscation Orders.
Should a Confiscation Order remain unpaid at the expiry of the Time to Pay period and the Prosecution begin Enforcement Proceedings, we seek our client’s instructions to obtain a Legal Aid Representation Order in the Magistrates’ Court to enable us to represent our client in the Enforcement Proceedings. For example, we will obtain our client’s instructions on payment proposals to be put forward before the Court and to seek to evidence the reasons why the Confiscation Order remains unpaid in mitigation. Note that the Post-Order stage does not conclude when Enforcement Proceedings commence, the Proceedings will run alongside each other until such a time that the Confiscation Order is paid in full. For example, simply because Enforcement Proceedings have been commenced, does not mean that an application for a decrease in the Available Amount cannot be prepared and submitted to the Crown Court for consideration.
Our clients often find themselves subject to a Restraint Order during the Confiscation Proceedings which may have been issued by the Court even prior to the criminal trial. During the preparation of the Confiscation Proceedings clients often find themselves in a position whereby they require the Variation of the Restraint Order to enable them to deal with particular assets. This is particularly prevalent at the Post-Order stage of the Confiscation Proceedings where assets need to be realised, because although the Confiscation Order has been made, the Restraint Order remains in place until it is formally discharged by the Court which is typically upon full payment of the Confiscation Order. Clients if subject to a Restraint Order are unable to simply go ahead and sell an asset towards satisfaction of their Confiscation Order unless a Variation of the Restraint Order is made, and we therefore assist our clients in seeking and preparing such Variation Orders. Variations are sought in many circumstances, for example to deal with:
The Legal Aid Representation Order that covered the criminal trial, and the pre- and post-Order Proceedings enables us to undertake this work.
We also have experience in defending Contempt of Court Proceedings when proceedings are instigated for an alleged Breach of Restraint Order.
Where the Prosecution apply to have a Serious Crime Prevention Order made against a client, if a Legal Aid Representation Order is also ready in place for the substantive Crown Court Proceedings, we can assist in defending the SCPO application under the original Legal Aid Representation Order. The Prosecution may serve their Application at any point during the Proceedings, but it is often the case that where there are on-going Confiscation Proceedings, the application for the SCPO may be dealt with once the Confiscation Order has been made. The Application from the Prosecution will set out the terms that they seek the Order to be made upon, the duration they seek the Order to be in place for, any reporting requirements for example a financial Reporting Requirement, and the grounds upon which the Prosecution rely in making their Application. The defence will prepare their Response and a Hearing may be heard before the Court to determine whether or not a SCPO should be issued against the client and if so on what terms and for what duration.
Although Cash Forfeiture and Confiscation Cases often go hand-in-hand, unfortunately, the Legal Aid Representation Order covering the Confiscation Proceedings does not provide for defending of a Cash Forfeiture Application, and this area is therefore usually funded on a private paying basis. If you are subject to a Cash Forfeiture Application and seek to defend the same, please feel free to contact us to discuss the same. We also have a designated Criminal Department who deal with substantive Criminal Proceedings, from the initial Police Station interview through to the Trial stage, so please do not hesitate to contact our Criminal Department should you have any on-going or forthcoming Criminal matters. You can learn more about our Criminal Department on our website under the relevant department heading.