The Proceeds of Crime Act (POCA) came into force in 2002 and it is meant to allow the government to confiscate proceeds which are crime-related. Prior to the introduction of the 2002 Act, a prosecuting lawyer had to prove that the money or assets were the proceeds of crime and also what ‘type’ of crime the proceeds came from (i.e. either drug crime or non-drug crime). The 2002 Act removed the need to make a distinction between these types of crime and the true source of the proceeds.
POCA has been regarded by many as a completely draconian and unfair piece of legislation. It fails to make a distinction between those who grow cannabis for personal use and those who grow it for commercial purposes. Cannabis users, drug traffickers and gang leaders therefore all get lumped into the same category, which often leads to highly disproportionate fines and confiscations to cannabis users. This lack of differentiation often means that people who grow cannabis for personal use are considered as equals, in the eyes of the law, as a drug lord who does actually harm others, be it through violence or by pushing hard drugs as well.
Now, many people might assume that if people are growing cannabis, especially if there are growing many plants, then they must have an intention to supply cannabis to others. Indeed, if a cannabis grower is caught with many plants and claims they are merely for personal use, are they not just trying to avoid an even harsher punishment? Perhaps this could be true in some cases and of course, it is an understandable plea to make in the face of such a daunting confiscation order. However, there are many cases when people who grow cannabis for personal use are unfairly punished by the law.
Back in 2011, Kevan Whitelaw fell victim to this draconian law, who received a confiscation order of nearly £13,000 after he pleaded guilty to growing cannabis for personal use. In an even more unsympathetic case, a 67-year-old man, Barry Steward, received a confiscation order over £100,000 for growing cannabis in order to relieve the pain caused by his bowel cancer. He grew 91 plants which had a value estimated at £14,000, which in no way correlates to the amount of the confiscation order. Police claimed that the scale of his cannabis growing matched those practised by “organised crime gangs”. When the courts claim that a cancer sufferer has a “criminal lifestyle” because they are trying to relieve their pain, clearly the law needs to be reformed.
I recently interviewed a woman whose partner is currently facing a confiscation order of £27,500 for growing cannabis for personal use. Their names have remained anonymous for legal reasons.
Could you tell us a bit about your background with cannabis. How long have you been growing for? And what made you want to start?
We had both been smokers since we were teenagers. We had only been growing for a year or so. My partner was an ex-heroin addict so didn’t want to associate with dealers anymore to avoid the risk of any temptation so we started growing. Also by growing, you know exactly what you are smoking.
You’ve said that you and your partner have been victims of the Proceeds of Crime Act. Could you tell us a bit about how the authorities found out that you were growing? And what immediate action they took?
We were caught growing back in 2011. Unfortunately, it was due to a completely different situation that the police came round. On entering the house they found our plants. We were arrested and charged with ‘being concerned in the production of cannabis’ first.
You said the cannabis was for personal use. Is there a reason why the confiscation order for your partner (at £27,500) is so high? Did they suspect that he intended to supply the cannabis?
We were charged with production for personal use for the 12 plants that we had. At first, the CPS wanted to do a Newton hearing to try and get us for commercial growing but they abandoned the idea when it was clear they would never win. I don’t think they were suspicious that we intended to supply the cannabis: we had no scales and no money or tick list was found at our house
I got 50 hours community service and my partner got 80. There is no law to differentiate between personal and commercial production which is why most growers who are now caught are charged with production rather than cultivation to enable the CPS to do a Proceeds of Crime Act (POCA). With a POCA you are guilty till you prove your innocence. They go back through all your bank statements for the past 6 years and any credits that you cannot provide ‘clear and cogent’ evidence for are considered proceeds of crime. So if you have any cash deposits at all then they are considered proceeds of crime as you cannot provide clear and cogent evidence where the cash came from!
As I have no assets I was only ordered to pay a pound! However, because of my partner’s complex financial situation – having multiple shared bank accounts – he was not so lucky.
Were you aware of this financial risk when growing?
No, not at all. If we had known what could happen then we would have only have grown a plant or two!
What do you see as the main impediments to the legalisation of cannabis?
I really don’t see any, apart from the amount of money the government would make out of POCA. At least with legalisation for recreational use the government wouldn’t be able to rob assets from personal growers!
How can growers avoid getting caught?
If I knew that I wouldn’t be in this situation! My advice would be to never tell anyone what you are doing, have a good carbon filter so that it doesn’t smell and only do very small grows.
Even if growers do get caught, is there any way to avoid the harsh fines and confiscations?
It seems the only way to avoid the harsh fines and confiscations is if you don’t have any assets! If you have worked hard all your life and actually get somewhere and own something then they will do their best to take it away! My partner has worked hard all his life and this is the repayment he gets from the government: downright robbery!
Oh yeah, be sure to have immaculate bookkeeping. Also get a really good lawyer who specialises in POCA (our mistake). And never agree to anything with them out of court, even though they will try and make you. They did with my partner and that has made our whole situation that much worse.
How have the police treated both of you and your property?
The financial investigator for the POCA case was ruthless and seemed to want to stop at nothing to get us. Every time we produced something (for example, a valuation or proof of a loan) she would question it. The POCA case went on for nearly 2 years (an unusually long time) and was very stressful. I even made a complaint against her as she made several mistakes in her report, especially when it came to converting euros into pounds (my partner had a bank account and two properties in France). Strangely she claimed the money in the French bank account and properties were worth more than they actually were. This is probably because financial investigators are on commission and they get a percentage of any money they manage to win in a confiscation order. With regards to the French properties, the CPS and prosecution, and eventually the judge, have been horrendous.
Do you think the Proceeds of Crime Act can be reformed or should it be abolished completely?
I don’t think that it should be abolished completely but it definitely needs to be reformed! Firstly, I don’t understand why it is the only law where you are guilty until proven innocent. There should definitely be a law where with the production of cannabis if you get prosecuted for growing for personal use then they cannot do a POCA on you (like there is with possession of a drug). The POCA was designed to capture big drug lords and mafia gangsters who do have proceeds of crime. However, the authorities are very unsuccessful in actually capturing these criminals as they have accountants who launder all of their money. The law is completely draconian and essentially allows the government to legally steal from peaceful cannabis users
What is the current situation with the confiscations order?
The available amount was set at £27500 by the judge. They look at your assets and then say what is available; although how you are meant to sell half a house is beyond me. We are currently appealing this decision. My partner has 6 months to pay this fine. If he hasn’t got the money at the end of the 6 months but can prove that he has tried to raise it (i.e by putting his assets up for sale) then he gets a 12-month extension. If by the end of the 12 months he still hasn’t got the money then he gets thrown into jail for his default sentence (in his case 12 months). The length of the sentence depends on the amount of money they say you owe. Even if he gets thrown in jail and does his time he STILL owes the money when he comes out. Oh yeah…and the icing on the cake…they put interest on the amount as well!
We have to have the appeal in by Wednesday so fingers crossed it goes our way!