SPOTLIGHT ON POCA - Confiscation Orders Involving a Trading Business
- Monday, February 17, 2014
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:
Legitimate trading business
In confiscation proceedings, particularly involving a â€˜Criminal Lifestyleâ€™ 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 defendantâ€™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.