In this post we'll look at answering the client's (or defendant's) favourite question: "how much will this actually cost me?" or, in the language of confiscation, calculating the recoverable amount. Our starting point is calculating what the defendant's benefit has been from their criminal conduct. Here we become concerned with whether they have a 'criminal lifestyle' or not. Under the Proceeds of Crime Act you have a 'criminal lifestyle' if you hit certain criteria which (if you care for the detail) you'll find at section 75 of POCA - follow the link on my "Links" page.
In planning enforcement you're most likely to find defendants with criminal lifestyles because of these criteria:
• The criminal breach of planning controls from which the defendant has benefited has been committed over a period of greater than six months (because planning prosecutions often seem to take a while to swing into gear); or
• In the preceding six years the defendant has been convicted on at least two separate occasions of an offence from which he has so benefited (because people who breach planning controls seem to keep on breaching planning controls - but note this is not limited to planning prosecutions, it can be any criminal conviction in the preceding six years from which the defendant has received sufficient benefit. Planning advisors suddenly need to know a lot more about their client's *ahem* other "business" than perhaps they thought...).
If your defendant does not have a criminal lifestyle then you only count up the property they've received from the particular criminal conduct at hand.
BUT if they do have a criminal lifestyle...
The prosecution (and court) will assume that in the six years preceding the prosecution:
• Any property transferred to him is the proceeds of crime;
• Any property held by him is the proceeds of crime;
• Any expenditure incurred was met by the proceeds of crime; and
• Any property so transferred or held was solely held by the defendant free of other interests.
Rebutting these assumptions is up to the defendant.
Lets contextualise this with an example...
Joe Bloggs is a developer who likes to chance it a bit. Over the past three or four years he has been prosecuted a couple of times, once by the LPA for breach of an enforcement notice prohibiting his unlawful change of use of his field from agriculture to use as a car park and for car boot sales (from which he made about £6,000) and once by Trading Standards for selling some counterfeit DVDs and perfume at his car boot sales (from which he made about £5,500).
He gets prosecuted again for continuing to breach his enforcement notice by running car boot sales from his field (this time making about £7,000).
The 'recoverable amount' in this example is not £18,500 (6,000+5,500+7,000). Mr Bloggs has a 'criminal lifestyle' for the purposes of POCA because this is conviction number three in the space of six years. So the recoverable amount starts out as being the sum total of every penny he has received, every penny he has spent and the full value of every asset that has gone through his hands in the preceding six years.
Again - be honest...how many planning advisors would have spotted the relevance of this third conviction in six years? And how many of you would have asked about the Trading Standards matter, or seen the relevance of it even if you had asked?
Great news for LPAs and their enforcement teams...and not so great for clients who simply won't comply with planning controls. But the story doesn't end there...
Next time - how defendants can rebut the 'lifestyle' assumptions and the "available amount" (or more plainly, how to reduce the recoverable amount).