"When facing a criminal trial it is all too easy to put all your energy into your defence. Some however will have one eye on the bigger picture. What happens to my assets if I do get convicted?"

For example, often in conspiracy allegations the Defendant is worried about what a conviction means, given what the prosecution are saying about him. The Defendant may have been telling a pack of lies but he's not as guilty as the prosecution suggest. Thus the fear is that the Confiscation Order will not match the crime - meaning potentially years more added onto the sentence when the Order is not paid. The problem is that the legislation does not always work to ensure that there is a link between profit from the crime and the Confiscation Order of the Court.

There is little that Defendants can do to protect themselves if the worst comes to the worst. But there are a few issues which Defendants certainly should have in mind and could, if it came to it, make a difference. We cannot, in this short article, give a guide to the law on confiscation and the Proceeds of Crime Act 2002 (POCA); all we hope to do is to introduce some of the considerations that may be worth taking into account before a case comes to trial.

'Criminal Lifestyle'
Confiscation Orders are a sentencing tool. Once a Defendant stands convicted before the Crown Court and the prosecution have asked for a confiscation order then the POCA regime kicks in; the Court must proceed to s6, the confiscation scheme. Section 6(4) defines the depth and scope of the final Order; it provides that the Court must decide whether the convicted Defendant has a 'criminal lifestyle' or whether he has just benefited from his 'particular criminal conduct'.

By s75 a Defendant has a criminal lifestyle if the offence is one specified in Schedule 2 of the Act. This is a list of offences under, e.g. the Drug Trafficking Act, the Terrorism Act the Immigration Act 1971, money laundering, people trafficking, arms trafficking, counterfeiting, intellectual property crimes (copyright infringement), pimping and brothel-keeping and blackmail. If convicted of one of these offences then you are deemed to have a 'criminal lifestyle'. The other way to have a criminal lifestyle is if the conviction:

(a)	constitutes conduct forming part of a course of criminal activity, or
(b)	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.

Conduct forms part of a course of criminal activity if the Defendant has benefited from the conduct and he was convicted at the trial of 3 or more other offences for which he gained benefit - or - he has in the last 6 years been convicted "on at least two separate occasions of an offence constituting conduct from which he benefited."

Effect of having a criminal lifestyle
If the Defendant has a criminal lifestyle then under s6(4)(b) the Court must decide whether he has benefited from his 'general criminal conduct' and if so by how much. In doing this the Court will apply the statutory assumptions under s10 to the past 6 years, e.g. any property transferred to the Defendant in that period was obtained through crime and that any expenditure by in the past 6 years was met from the proceeds of crime. This means the Court when trying to determine how much a Defendant has benefited from crime will not be restricted to the crime the accused has just been convicted of but will instead 'assume' that the Defendant has a criminal lifestyle and that all monies/property received in the past 6 years derive from his general criminal conduct. The prosecution will attempt to list all the major transactions over the last 6 year period and invite the Court to apply the assumptions.

Avoiding the Assumptions
The lifestyle finding in itself is not the problem - it is the assumptions that follow that is the worry. There are two ways of avoiding the assumptions under s10(6). Firstly, the Court cannot make the assumption if it "is shown to be incorrect", so if the Defendant can show that a particular source of income was entirely legitimate then the assumption cannot be made that it wasn't. Secondly, an assumption can be avoided if "there would be a serious risk of injustice if the assumption were made."

If found to have a criminal lifestyle the prosecution can pursue you for everything you have - and in some cases haven't got. Otherwise the Crown is stuck with the benefit from the offence that the Defendant has just been convicted of. So what practical steps can be taken to try and protect against a possible lifestyle finding if convicted?

Admissions
Admissions under s10 of the Criminal Justice Act 1967 can be very helpful to Defendants. For example a Defendant on a money laundering charge may well have a legitimate income - if that fact and some details of income can be accepted by the prosecution, rather than having to call witnesses, then at least a convicted Defendant can point out to the Judge that it should be beyond dispute that there was some legitimate income in an attempt at avoiding the statutory assumptions. This can of course all be done post conviction but securing a s10 admission during trial will limit the prosecution's assertions in the later confiscation proceedings.

Drugs Trafficking Cases
Drug cases are notorious for producing some very Draconian Confiscation Orders. This is essentially because the conviction for trafficking leads directly to a lifestyle finding and then the assumptions apply. However, it is as well to remember that the general principle in assessing a benefit figure is to assess the value of the property, e.g. your house, at the market value of the property at the time of the confiscation hearing (s79(2)). Drugs however have no legitimate market value so someone caught in possession with a large quantity of drugs would, in theory, be able to avoid the confiscation consequences. The Courts get round this problem by applying the logic that the drugs themselves were purchased from the proceeds of previous dealing, therefore the Defendant could be said to have benefited from drug trafficking to the value of the drugs in his possession; see R v Dore [1997] 2 Cr. App R (S) 152.

However the Courts cannot just make assumptions about previous dealing, there must be evidence of this; only then do the statutory assumptions apply, see R v Williams [2001] 2 Cr. App R (S) 206. R v Ajibade 28.2.06 (CA) was a case of a drugs courier caught at Heathrow, there was clearly no evidence that she had purchased the drugs herself - never mind from the proceeds of drugs dealing (see also R v Hussain 28.2.06). In those circumstances there was no finding that the value of the drugs in effect represented their purchase price. This may be important in some cases, e.g. in surveillance cases where the guilty verdict comes as a result of phone connections etc at the time of a seizure, but there is also plenty of surveillance material to show that the Defendant had not been selling drugs beforehand but spends his time shopping, going to pub etc etc. Of course every case depends on its facts, and not all will be as clear cut as the courier case, but sometimes an Officer may be drawn in cross-examination to admitting that there is no direct evidence of drug dealing by a Defendant prior to the seizure date; that piece of evidence could become very useful later.

Defence Case Statements and Disclosure
Also, if pre-trial it can be established that your defence includes, for example, an assertion that you have a legitimate income or that your lifestyle can be explained by some other legitimate income stream, say gambling or being an amateur antique seller then those assertions become part of your defence case. That being so the prosecution are under a duty to investigate. If you are confident enough to be able to specifically plead certain transactions in a Defence Statement then the police will have to look into these assertions. Maybe neither party uses the material produced but you would be entitled to disclosure of it and use of it at any later confiscation proceedings. It is sometimes nigh on impossible for the defence to obtain materials such as bank statements etc from third parties which is why it is always worth considering using the resources of the State to tactically assist you if appropriate. If, on the other hand, the police do not diligently investigate your defence then this is some ammunition for making an application to avoid the statutory assumptions after any conviction.

Conclusion
Confiscation proceedings under POCA are quite separate from the trial and sentencing procedures. But sometimes you can start to protect yourself at and before the trial stage; it all depends on the particular facts of the case. Knowing the case inside out and understanding the defence 'theory of the case' is important - then at least the defence team can start thinking about possible tactical admissions, cross-examination points and issues about legitimate income etc. As usual early preparation is the key.

Jonathan Lennon is a Barrister specialising in criminal defence in complex/serious cases and Prison Law at 23 Essex Street Chambers in London. He was former co-editor of the Prison Law Reports.
Aziz Rahman is a Solicitor- Advocate and Partner at the leading Criminal Defence firm Rahman Ravelli Solicitors, specialising in human rights, financial crime and large scale Conspiracies/serious crime.

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