Confiscation is a hugely important subject for defendants and their families but unfortunately too many lawyers failed to look after their client’s interests, possibly because the pay is so poor on legal aid.
We are asked to take over a number of cases following conviction but before the confiscation order is made usually because of the failure of the original lawyers to make any progress in preparing the case for the defendant. For some reason the lawyer’s interest seemed to be lost following conviction. Often, at this stage, the defendant might have lost faith in his defence team.
The main concerns of the confiscation process include looking at the ‘benefit’ to the defendant and also looking to establish what assets are available to meet an order.
The latter issue can be complex but it is very important to the client to have this argued fully and properly. If the judge orders a figure that is too high the client is at serious risk of failing to meet the order and therefore faces a period of imprisonment in default of payment.
The ‘benefit’ issue can be vital but is the one that is overlooked too often. Lawyers have tended to make the mistake that it does not matter what the benefit figure is as the real issue will be the available assets. However, the unpaid benefit figure does not disappear. It remains payable and if the client comes into money at a later date (whether as a legacy, through settling down and earning/saving, winning lottery…) the balance plus interest can be claimed.
We continue to receive instructions from clients who are disillusioned with their former representation.