This article first appeared in the November 2013 NAPE newsletter.
In most cases, pursuing a prosecution without also going for a Proceeds of Crime Act (“POCA”) confiscation order does not make much commercial sense. The promise of receiving up to 37.5% of confiscated monies makes POCA confiscation orders an attractive proposition for cash-strapped Enforcement teams. So, at the outset of preparing for every prosecution, it pays to keep POCA in mind even when you are not entirely sure you will pursue a confiscation order.
Thinking ahead to the future, officers should keep the following in mind when preparing for prosecutions:
Determine who is financially benefiting from the alleged breach. Remember that there are two separate offences in planning law for non-compliance with enforcement notices: one committed by owners, the other by persons having control of or an interest in the land. Ensure you collect sufficient evidence to prove either offence.
Where land is owned or controlled by a company, and an offence has been committed with the consent or connivance of a director or manager of the company, such director or manager will be guilty of the same offence. It is also possible to confiscate assets held in a company when an individual is convicted of an offence. Do not assume that a prosecution (and subsequent confiscation order) is not worth pursuing purely because assets are held in companies.
Length of time breach has subsisted
Ascertain early on whether the planning breach has been continuing for more than 6 months and gather evidence to prove offences over this period by carrying out site visits and taking photographs. Particularly for ‘use’ offences, a fine is likely to increase with the number of offences you are able to prove in evidence.
Furthermore, if offences have been committed over a period of more than 6 months, the offender has a ‘criminal lifestyle’ for the purposes of the Proceeds of Crime Act. The effect of this is that all property acquired by him/her within the last 6 years, are presumed to have been obtained as a result of his/her criminal conduct and may therefore be confiscatable.
With a little bit of additional preparation during the initial prosecution preparations, this strong and effective presumption can make a significant difference in the size of the confiscatable assets at a confiscation hearing. Remember however that confiscation orders can still be obtained even in the absence of a ‘criminal lifestyle’, though helpful the presumptions that kick in when a ‘criminal lifestyle’ is proven.
Involve an AFI
Involve an Accredited Financial Investigator as early as possible, and well before a conviction. An AFI has specific powers under the POCA to acquire financial information on a defendant from banks and other institutions. With information on a defendant’s financial situation, an informed decision can be made as to the prospects of success of a confiscation order. Early involvement also means time will be saved in the process.
Following these steps at the outset of preparing for a prosecution will mean you have better information upon which a decision can be made as to expediency of taking action. Specifically considering the timeline of the offences committed will place your Council in a position to obtain as large as possible a confiscation order.
If you have a specific question on POCA, please let us know and we can cover it in the next edition of the NAPE newsletter.