Crime Solicitors

Proceeds of Crime – The Burden of Proof



The civil (as opposed to criminal) burden of proof is that of the ‘balance of probabilities’ – whether something is more probable than not.



It is the civil burden of proof that is required under the Proceeds of Crime Act 2002, which allows the confiscation of assets which are obtained through conduct which is unlawful under the criminal law of England and Wales. Applications for confiscation are made by the Assets Recovery Agency (ARA).



It is not necessary that the unlawful gains are applied directly to the asset(s) concerned and provisions exist for a recovery of a proportion of the value of an asset which has partly been funded by the proceeds of crime and partly from other sources. For example, a house bought with a 50 per cent mortgage, the balance of the purchase money being from the proceeds of crime, could be subject to a 50 per cent confiscation order.



A recent case clarifies the test the court will apply in cases in which a confiscation application is opposed. It was judged that the ARA does not have to prove that a specific criminal offence has been committed. It merely has to prove the kind of conduct which would have resulted in the assets being obtained. However, merely showing that the lifestyle of the alleged criminal is not consistent with their disclosed lawful income is not enough to warrant confiscation.



In the case in question, several properties owned by the defendant were confiscated, except for one for which he was able to produce plausible documentation showing that the purchase money came from a bank in Nigeria.





Partner Note

Director of the Assets Recovery Agency v Oluptian & anor. [2007] EWHC 162 (QB).