Family Law AssociationThe Law Society of Scotland
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Proceeds of Crime Lawyers Glasgow

Proceeds of Crime – Confiscation/Civil Recovery

The Proceeds of Crime Act 2002 enables the state to recover property deemed to have stemmed from criminal conduct.  The various provisions equip the authorities with extensive powers to assist them in recovering criminal property. If you are alleged to have benefitted from the proceeds of crime then it is imperative that you obtain expert legal advice at the earliest opportunity.

A variety of proceedings may be raised under the Act and can arise from a vast array of circumstances. Proceedings are often raised following upon a criminal conviction (confiscation proceedings) but civil actions are also possible to recover alleged proceeds of crime (civil recovery).

We are able to provide expert advice and court representation in relation to the following:-

  • Inhibition, Restraint and Prohibitory Property Orders
  • Disclosure Orders
  • Production Orders
  • Confiscation Proceedings
  • Cash Seizures
  • Civil Recovery


We have extensive experience of representing clients in relation to all manner of cases and applications involving all aspects of the 2002 Act. We appreciate the practical difficulties that can be encountered when assets (e.g. bank accounts) are frozen and know what steps can be taken to ensure you are able to function until the matter has been resolved.

When instructed, we are able to immediately engage with the Proceeds of Crime Unit and Civil Recovery Unit of Crown Office, allowing us to ingather information about your case and address any pressing issues without delay. We appreciate how unsettling any action can be so therefore strive to quickly eliminate any uncertainty as to what is happening and will thereafter guide you through this difficult process one step at a time.

We are used to dealing with extremely high value and complex actions.

 ‘Inhibition, Restraint and Prohibitory Property Orders’

When an investigation is underway, the legislation provides a number of ways in which the state can seek to secure assets and prevent the owner from divesting themselves of them. This usually happens at the very beginning of an investigation and often before any criminal proceedings have been commenced.

Section 120 of the Proceeds of Crime Act 2002 enables the court to make an order (a “restraint order”) interdicting a person from dealing in any realisable property held by him. We regularly advise clients who have received a restraint order preventing them from accessing funds held in bank accounts or from dealing in any heritable property. These often include measures to prevent the recipient from dealing in any heritable property by virtue of inhibition or a prohibitory property order.

It is possible to apply to the court seeking to vary or recall the restraint order by virtue of section 121. We are able to advise on the terms of any restraint order and the prospects of successfully applying to vary or recall any such order.

 ‘Disclosure Orders’

The 2002 Act allows for an application to be made to the court requiring disclosure of information and documentation. In particular, where the information sought will render any restraint order to be more effective e.g. a disclosure order may require an individual to disclose the whereabouts of certain assets. In terms of section 120(6), the court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.

Within our team, we have experience of dealing with the very first disclosure order under the 2002 Act, which was successfully appealed to the Inner House of the Court of Session.

If you are served with an application for a disclosure order, you should contact us immediately for expert advice.

‘Production Orders’

When an individual is under investigation by the authorities in relation to suspected proceeds of crime, your organisation may be served with a production order.

This may present issues in terms of client confidentiality so you may want to take advice before handing over documentation including confidential information to the police.

 ‘Confiscation Proceedings’

Confiscation proceedings are the method by which the Crown seek to recover alleged benefit from criminal conduct. Under section 92 of the 2002 Act, the prosecutor may make an application for confiscation once an accused person has been convicted of an offence which involved a financial gain or if they have been convicted of a so called ‘lifestyle offence’.

For example, if an individual is convicted of a £10,000 fraud, an application for a confiscation order in the sum of £10,000 can be anticipated. If an individual is convicted of any lifestyle offence listed under Schedule 4 of the 2002 Act (e.g. drug supply or money laundering) then an application for confiscation will be made in relation to any unknown income or increase in assets during the preceding six year period.

During the proceedings, the prosecutor will be required to produce a ‘statement of information’ and disclose any financial productions upon which the application is based. This which will require expert analysis and often consideration by a forensic accountant. An accused person will be ordered to submit ‘Answers’ to the prosecutors statement of information by way of written pleadings. We are highly experienced in scrutinising prosecutor’s statements, drafting Answers and liaising with forensic accountants in the analysis of financial productions.

A conviction for a lifestyle offence opens the door to scrutiny of an individual’s financial affairs for a period of six years dating back from the date of the offence he was convicted of. Any unknown income is deemed to be the proceeds of crime and recoverable under the 2002 Act. The onus is on the accused person to establish the legitimate source of the income. This is often a protracted and very stressful exercise. We have experience of successfully defending applications for confiscation and negotiating settlements with the Proceeds of Crime Unit at Crown Office.

Confiscation Order – Payment and Variation

Once an order has been made, you will be given a specified period of time in which to make payment. Even once you have made payment, that may not signify the end of the matter.

Section 107 of the 2002 Act enables prosecutors to return to court seeking reconsideration of the ‘available amount’ and to vary the order. This can mean that there is a further amount to be paid. Equally, if you are unable to pay the full amount of a confiscation order against you, in certain circumstances, it is possible to make an application to the court under section 108 to reduce the amount payable.

Expert advice is required in relation to either of these events.

‘Cash Seizures’

Where there are reasonable grounds to suspect that cash is ‘recoverable property’ under the Act or is going to be used in connection with unlawful conduct, section 294 of the 2002 Act enables the seizure of that cash by the authorities.

Any cash seized by virtue of section 294 can be detained for an initial period of 48 hours before an application must be made to the court by the procurator fiscal or Scottish Ministers to extend that period. Typically, the court will grant an application for extension while the matter is investigated further. If you have had cash seized from you, it is important to contact us immediately in order that we can attend at the initial court hearing seeking to extend the detention period.

An application may be made to the court for release of the detained cash in terms of section 297 of the 2002 Act. The court will require to be satisfied that the grounds for detention no longer exist. In practice, we are experienced at handling such matters and often find that making representations to the procurator fiscal or representatives of the Scottish Ministers with vouching as to the source of the cash will result in the cash being released or a settlement negotiated.

If the detained cash is not released, an application for forfeiture will be forthcoming. We are able to provide representation at any such court hearings.

‘Civil Recovery’


In addition to confiscation proceedings, where there has been a criminal conviction, the state can raise civil actions seeking to recover the proceeds of crime even although there has been no criminal prosecution.

The court will be required to assess whether the sums sought represent ‘recoverable property’ on the balance of probabilities. Such actions can be complex and require a detailed knowledge of the 2002 Act. Individuals can find themselves subject to civil recovery actions even although they have never been involved in any criminal activity if, for example, funds used to purchase a property or pay a mortgage are alleged to have derived from a third party involved in crime, rendering the property in question as ‘tainted’.

If you are served with an action for civil recovery, you need to obtain expert advice at the earliest opportunity. We can immediately contact the Civil Recovery unit at Crown Office and find out why you are being targeted. Our swift and expert advice can alleviate much of the stress associated with such actions and lead to a satisfactory resolution giving you peace of mind.

 

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