Impact of Criminal Lifestyle
You really cannot have too much lifestyle information if you are involved in confiscation proceedings. The impact of the court deciding you had a criminal lifestyle are severe, as the court has to make certain assumptions unless there is a serious risk of injustice. Not just “any” risk would do.
The assumptions are:
- Any property transferred to the defendant at any time after the relevant day was obtained by him as a result of his general criminal conduct;
- Any property held by the defendant at any time after the date of conviction was obtained by him as a result of his general criminal conduct;
- Any expenditure incurred by the defendant at any time after the relevant day was met from property obtained as a result of general criminal conduct;
- For the purpose of valuing any property obtained, or assumed to have been obtained by the defendant, he or she obtained it free of any interests in it.
- For the above purposes the “relevant day” is the first day of the period of 6 years before proceedings were started.
A defendant may have joined a lengthy conspiracy at the last moment but if this was not established in the trial it might not be possible to avoid a finding of criminal lifestyle. It might not however be too late, just more difficult. There are examples however where a person has joined criminality late, has not made a single penny of benefit but due to the criminal lifestyle provisions that attach to various types of crime set out in Schedule 2 of POCA end up being ordered to pay huge sums that they are never going to be able to find and will therefore end up in prison serving a sentence for the default with the prospect that they will be chased until their death for payment with a possibility that they will go back to prison regularly for non-payment of the interest that accrues.
The Courts, including the European Court of Human Rights, have decided that the system of confiscation is human rights compliant. We are however dealing with one case in Strasbourg that we hope will test that decision.