Confiscation, Restraint & Forefeiture
If you are arrested on suspicion of committing a criminal offence and as a result of a personal search or a search of property, your cash (in the form of coins or bank notes) is seized by the Police, this cash can be subject to forfeiture.
The Police can hold the cash for 48 hours before applying to a magistrates court for an extension of time. The magistrates must justify a decision to extend, but it is ultimately for the person whose cash it is, to prove that it has come from a legitimate source.
Our lawyers are experienced in dealing with such applications before the magistrates court and will fight, on your behalf, for the return of any cash seized.
A Restraint Order is used by the Prosecution when they are seeking to preserve and control the assets of someone who is the subject of criminal proceedings. They are usually used in cases involving serious drug offences, money laundering or fraud.
If the Court grants the order, it means that the person to whom it relates, is effectively blocked from dealing with their own assets, save that they are given a weekly allowance for their living expenses.
If the person is subsequently convicted of an offence, the Prosecution will then apply for a Confiscation Order under the Proceeds of Crime Act 2002. This involves money or assets being confiscated by the Court if it is decided that the convicted person has benefited financially from criminal activity.
Confiscation Order - What to Expect
To make a Confiscation Order, the Court has to decide the value of the ‘benefit’ that the person has received as a result of criminal activity. It also has to decide what ‘available amount’ the person has and their ability to repay the ‘benefit’ to the Court. If the benefit is the same or less than the available amount, then the benefit is usually payable in full.
If the available amount is less than the original benefit, then the Court has to decide what amount should be paid back. Once the Court has decided the amount to be paid back, the person has a limited period of time to pay that money (usually 6 months) and if it is not paid, a sentence of imprisonment can be ordered in default. This sentence, does not however, cancel the debt.
Confiscation proceedings can be very complex and lengthy. Often, people’s financial circumstances are extremely complicated. For example, you may own property abroad or jointly with someone else. At Bakers we endeavour to make the process as easy for you as possible. We will arrange for assets to be valued, if necessary, and are often successful in negotiating down valuations put forward by the Prosecution.
You will be represented by an advocate experienced in this field and can rest assured that it is our aim to achieve the best possible result for you.
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