SPOTLIGHT ON POCA - Confiscation Orders Involving a Trading Business

Contact: Peter Whittam, Jackie Clifford and Nick Fall; DTE Group (Manchester, England)

In this bulletin we look at the issues that arise when a defendant, who runs a trading business, is facing confiscation proceedings.  In our experience two scenarios commonly occur:

  1. The defendant runs  a business that he  claims  is  entirely separate from his  criminality, which provides a non?criminal source of income and assets.
  2. The business itself is involved in the criminal activity for which the defendant has been convicted.

Legitimate trading business

In confiscation proceedings, particularly involving a ‘Criminal Lifestyle’ case, the onus is on the defendant to rebut the  assumptions  and demonstrate to the Court that  all or some of his income and assets have derived from non?criminal activity.  It is very common for defendants to claim, when faced with such proceedings, that income they have enjoyed and assets they own, which the prosecution say are the benefit of criminal activity have, in fact, been generated by a legitimate trading business.

The first hurdle is to demonstrate that there is a business enterprise that the defendant runs and that  it  is  a  legitimate  venture separate  from  any  criminal  activity.    A  first step  is to objectively  consider the  credibility  of the  defendant’s  claims. We set  out  below  a table  of factors that may be relevant.  Negative factors, when taken together, will tend to indicate that it may be difficult to persuade a Court that the defendant has legitimate business income and positive factors may indicate a better chance of demonstrating that legitimate trading occurred.

Read the entire article.