Restraint, Confiscation and ForfeitureThe state now has enormous power to restrain, confiscate and forfeit assets owned by businesses and individuals. Mere possession of large cash sum creates a presumption that a crime has been committed. The right to silence means virtually nothing in such a context. For so-called “lifestyle” offences there is a presumption that all of a person’s assets and income are the proceeds of crime and subject to mandatory confiscation. This may include a finding of “hidden assets” which hikes the figure up way beyond real available resource. Failure to pay can then result in lengthy imprisonment in default. It is evident that the majority of businesses and individuals are unaware of the extent to which their assets are jeopardised until the bad news is broken post-arrest. These powers have attracted considerable controversy. Because so much is often at stake there have been numerous challenges in the appeal courts, resulting in a rapidly growing and shifting body of precedent. The government has responded to this with a shower of statutory instruments amending the rules. This is therefore now a highly specialised area of the criminal law. Fighting confiscation is a war of attrition, but there is much to be gained by taking a realistic view of which assets can be defended. Better off defendants who receive the right advice should avoid losing all they have built through a lifetime. The Courts have on occasion acknowledged the economic damage which excessive confiscation can do to business. At Hickman and Rose we have considerable experience on such cases. Our recent successes have included:-
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