Defendants facing particularly complex or high value confiscation proceedings will often find that the Crown assert they have “Hidden Assets” to pay towards their Confiscation Order.
The consequence of such a finding if unchallenged is that the defendant will be ordered to pay an amount that they are adamant is not available or cannot be paid, and inevitably the activation of an additional default prison sentence.
There are broadly two scenarios where “Hidden Assets” arise as an issue in confiscation proceedings.
The first is where an identifiable asset is untraced, e.g. cash from a robbery that was never recovered, stolen or laundered funds transferred out of the jurisdiction etc, and the Crown assert quite straightforwardly that the defendant must account for the whereabouts of the asset.
The second is where the Crown contend that having regard to all the circumstances surrounding a defendant’s finances that there can be no other inference for the Court to draw save for that the defendant must have hidden assets. This may be evidence the defendant has access to funds that he did not disclose when ordered to do so, for example, or perhaps that no legitimate income can be found to support the lifestyle a defendant has been demonstrably living.
In both cases it is vital that the defendant produces clear and cogent evidence to support what they say, because the burden of proof rests on the defendant. They must prove, on the balance of probabilities, that they do not have sufficient assets to re-pay the benefit figure the Court has determined.
The defendant’s word alone is almost never enough alone to discharge the burden.
This is why Olliers proactively defend “Hidden Assets” allegations; taking detailed instructions, conducting tracing and investigative work in the UK and abroad, and engaging expert witnesses (e.g. forensic accountants) to meticulously prepare the evidence that will support the defendant’s case.
Mr. M was convicted of financial crime and benefitted to just over £1million. He received a substantial prison sentence and transferred to Olliers after the Crown’s POCA application was served alleging hidden assets in the entire amount. Olliers successfully defended this application through extensive work tracing the defendant’s expenditure and re-constructing his lifestyle, sourcing material from key witnesses and pressing the Crown for disclosure of vital documentation. The end result was that the Crown conceded the argument and the defendant was ordered to pay back a nominal amount only, avoiding a default sentence that at the time would have extended his sentence by up to 10 years.