A criminal lifestyle in this context has nothing to do with the car you drive, the jewelry you wear, the swimming pool or the lavish holidays. Just because you have enjoyed none of these will not have any impact on the question of criminal lifestyle.
A person only has a criminal lifestyle under POCA if one or more of these tests is satisfied, namely:
- It is specified in Schedule 2 of POCA;
- It constitutes conduct forming part of a course of criminal activity and/or;
- It is an offence committed over a period of at least 6 months and the defendant has benefited from the conduct which constitutes the offence.
The Schedule 2 specified offences are set out in the Proceeds of Crime Act. The main ones that you are likely to come across will be drug trafficking and money laundering.
A course of criminal activity is proved if the defendant has been convicted in the current proceedings of four or more offences from which the defendant has benefited, or has been convicted of one offence from which the defendant has benefited on this occasion and within 6 years of the start of the most recent proceedings has been convicted on at least two separate occasions of an offence from which the defendant has benefited. Note that the benefit to the defendant needs to be at least £5,000 in this case, in order to satisfy the criminal lifestyle test, but the value of any TIC’s will count towards this sum.
The third potential qualification for the criminal lifestyle test appears to be self evident, but the defendant must have benefited to the tune of at least £5,000.
In the last case it is also worth bearing in mind that prosecutors have been tempted to charge conspiracies that go slightly over the 6 month period in order to trigger this provision. It may be very important to try to prove that the client’s involvement is less than the 6 months.