Recently, Stephen Halloran of Lawtons specialist solicitors in London office, dealt with a case surrounding a drug supply offence that shows the importance of carefully considering all aspects of the sentencing process. Due to Stephen’s approach, our client was only ordered to repay less than £1,000, when the prosecution had originally sought an order for over £400,000.
The law on proceeds of crime, or POCA as it is more commonly known, is complex and this article will not explain in detail the case law built up over a number of years. We hope this basic guide will assist in understanding the successful approach we adopted for our client in this particular case.
Proceeds of crime – a quick explainer
In any criminal case where a defendant has gained a financial advantage from criminal activity or has a criminal lifestyle, the Courts will routinely be asked by the Crown Prosecution Service (CPS) to consider proceeds of crime measures. The Crown Court will consider what they assess to be the financial benefit of the crime, called the ‘recoverable amount’. The Court may use this figure as the amount that the defendant needs to pay if found guilty.
If a defendant can show that they do not have that amount of money, a reduced sum can be ordered – this is called the ‘available amount’. When calculating the ‘available amount’, it does not matter if you no longer have the money (you may have spent it or the police have it) or you never actually received the money. The legislation has been designed to be harsh.
The legislation goes further and can mean that the ‘available amount’ is reconsidered after the POCA part of your case has concluded, should you come into money in the future. This could include an inheritance, a lottery win or a significant increase in your assets (from selling property, for example). No time limit exists for this reassessment.
It is, therefore, vital that POCA elements of a case are dealt with properly. As the following case shows, the positive impact on our client was considerable in both the short and longer term.
Stephen’s client pleaded guilty to a drug supply offence, with the CPS saying that the value of the drug (the class B drug monkey dust) was in excess of £400,000. Our client entered a plea on the basis of being a courier, solely involved in the delivery of the drug and not standing to benefit any further. Our client was sentenced on this basis. The prosecution then sought to argue that the ‘recoverable amount’ should be the full £400,000+.
Following extensive correspondence with the specialist unit at the CPS that deals with POCA cases, it was accepted that the ‘recoverable amount’ should be at a level deemed appropriate for those who are couriers in the true sense of the term. With the ‘recoverable amount’ being fixed, our client could not be liable for a greater amount than the ‘available amount’ to be paid immediately – and would not be subject to a future reassessment of the amount.
For those who are young and may either come into money or earn significant sums later on in life, the potential for a significant clawback of money exists.
Stephen’s client instructed him on a privately funded basis and the significant sums protected meant the legal fees were a worthwhile investment by the family. Stephen was able to instruct a specialist barrister, Colin Witcher of Church Court Chambers, to assist.
Should you require assistance with a case of this nature, we have an experienced team of lawyers who can assist, along with established links to specialist forensic experts and barristers working in this complex area of law.