When the prosecutor indicates to the court that they wish to proceed to confiscation, an order under section 18 of POCA may be served on the defendant. This requires the defendant to declare all assets in which he or she has an interest. Once the section 18 response has been received, the prosecutor will prepare a statement of information (a “section 16 statement”). The section 16 statement sets out the prosecution position and details the defendant’s benefit from criminal conduct.
The defence will respond to the section 16 statement with a statement of information (under section 17 of POCA). The statement of information procedure is designed to provide a quick and effective method of identifying the extent of the defendant’s benefit.
At the confiscation hearing the court must decide whether the defendant has a criminal lifestyle or has benefited from particular criminal conduct (see below). When assessing the defendant’s benefit at the hearing the court must take account of conduct occurring, and property acquired, up to the time it makes its decision.
The court must always deal with the issue of confiscation upon conviction and prior to sentence. The proceedings can, however, be postponed:
on application by the defendant;
on application by the prosecutor; or
if the court believes it is appropriate.
If either the prosecutor or defence require time to present their case in relation to confiscation proceedings, the court may set a date for the confiscation hearing and specify dates by which the prosecutor’s statements and defence responses are to be served. Proceedings may not be postponed for more than two years from the date of conviction unless, in the view of the court, there are exceptional circumstances.
A confiscation order is payable as soon as the order is made unless the defendant can show the court that he or she needs time to pay. If this is the case, the court may extend the time to pay for up to six months from the date the order is made. If the court believes there are exceptional circumstances then it may extend the period in which payment is due to a maximum of 12 months. The defendant may apply to the court under this provision at any time after the confiscation order is made, but not after the six month period has elapsed. Time to pay should not be granted unless the prosecutor has been given the opportunity to make representations.
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