“You are right. It is draconian.” POCA

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Wise words uttered to me by a client who was embroiled in the final stages of the POCA process. He had been convicted of possession with intent to supply and at the end of his trial the Judge considered confiscation.

As my client had committed a lifestyle offence the Financial Investigator (usually either an accountant or former Police Officer specifically trained to be an FI) was entitled to ask for information about and to look into all transactions, accounts, dealings etc going back 6 years from the date of the offence.

A section 18 POCA 2002 had been ordered. That compelled my client to disclose full details in accordance with a Court Order about all bank accounts, all possessions, all cash that he had in his possession or control or had given to others. Failure to comply with this request can lead to an adverse inference being drawn when the Court considers how much has to be paid to the State and how much time you will do if you don’t pay up.

The FI then drafts a s16 POCA2002 Statement of Information which is in reality a huge fishing net. The FI’s role appears to be to seek out and find as much money as possible that can be confiscated. This then causes the Defendant to respond by way of a s17 POCA2002 Statement explaining the who, what, where, why, when and how about the money and possessions. This statement is a sworn statement and therefore if it contains deliberately lies can of itself result in a conviction for Perverting the Course of Justice.

There are certain aspects of the process thereafter which are patently unfair. Let’s imagine that you and your partner own a house together. Because you are a lovely man you have gifted 50% interest in that property to your partner. The FI and the Court are able to take the entire value of the property into account. Your partner is not a party to the proceedings. She can only intervene if there is a Restraining Order or if enforcement proceedings are to be taken through a Receiver. Receiver’s are rarely appointed as they are expensive. What can your partner do?

After some time the Court will then decide how much you should have to pay to the State. The Court will consider the Benefit you have had and the Recoverable Assets. If the RA figure is lower than the Benefit figure then that is how much you will be ordered to pay ie the lower figure.

One client recently thanked his lucky stars that he had not married his partner of 30 years and she owned their home in her sole name. He had no legal interest in that property. The value of that property was removed from the calculation and the State got about £900 instead of £90000. The FI had assumed they were married because she had adopted the client’s surname.

The Police and the Courts are very enthusiastic about POCA because the money recovered is used in part to fund the Police and the Courts. That’s why the FI is often characterised as a “dog with a bone”.

If you don’t pay up you get time added to your sentence and you still owe the money when you are released.

The most difficult thing for Defendants to get to grips with is the fact that the POCA proceedings are civil in nature (so the strict rules of evidence of a criminal trial do not apply) yet can be punished through custody and the Act places obligations upon the Defendant to be pro active and to provide information or suffer the consequences eg loss of home, car, cash and extra jail time.

POCA is draconian and either this year or next the National Crime Agency, when it comes into being, will take over the Serious Organised Crime Agency functions. POCA is a popular weapon in the armoury of those who pursue criminals because it is draconian and because it brings in money to the organisation. Recently SOCA on its website trumpeted a success in relation to a £35 million money laundering operation and the conviction of the two men accused of running it. Now the POCA process is to begin.

If you are likely to face a POCA process then you need to get advice as soon as possible.

Michael Robinson

What happens if you are caught drink driving?

Christmas is not far off. Dark nights and icy weather are a bad mix. You may even be tempted to go out straight after work, stay out late and drive to work the next day. Lots of people fail breathalyser tests on their way to work on a morning. Not drinking alcohol before driving and not driving to work after being over the limit the night before is the safest course of action, both for you and other road users.




So what happens if you are stopped by the police?



We are often asked ” Can the Police stop you randomly, for no good reason?”

The answer is “yes”.



“Can they then insist that I take a breath test?”

The answer is - Only if the police officer has reasonable cause to suspect that you have committed, or are currently committing a moving traffic offence; or, having stopped you, the officer has cause to suspect that you have consumed alcohol or the officer believes that you were involved in an accident.

A Police Officer can ask all occupants of a vehicle to give a breath test if he suspects that a passenger may have actually been the driver.

You cannot be forced to take the road-side test – but, unless you have a very good reason, for example you have a relevant medical condition such as asthma or emphysema, then you can only make matters worse for yourself by refusing. In any event, at the Police Station, (for it is almost inevitable that you would be arrested if you refuse to give a road-side breath test) you can be asked to give a sample of blood or urine. Failing to give a sample of breath or an alternative sample is likely to result in a charge and an appearance at Court.



So, the best advice is to go through the process peaceably and offer full co-operation and then seek legal advice.



Emmersons solicitors Michael Robinson and Duncan Emmerson collectively have more than 40 years’ of experience in this area of law. They have vast experience in representing business owners and employees where driving is an essential part of their working lives eg. Engineers who need to go out on site or key sales representatives.



It’s worth pointing out that there are no loopholes as such, but there are ways to apply and interpret the law which can help minimise ban periods and there are defences that can be put forward.

For example, shortness of distance driven; if you drove to a pub, parked the car on the roadside, had too much to drink then decided to move the car off the road into a nearby car park but got caught exceeding the legal drink drive limit, then it is possible that shortness of distance could be used as a defence.