What Is POCA Confiscation?

The Proceeds of Crime Act 2002 (POCA) gives the Crown Court the power to make a confiscation order against a defendant following conviction for a criminal offence. The purpose is to recover the financial benefit obtained from criminal conduct. Confiscation is not a sentence — it is a separate process that takes place after conviction and alongside any sentence imposed.

The prosecution applies for a confiscation order. The court then determines the amount of the defendant’s benefit from criminal conduct and the amount available to satisfy the order. The confiscation order is made in the lesser of these two figures. If the defendant fails to pay the order within the time allowed, they face a further period of imprisonment in default.

The benefit figure represents the total value of all property obtained by the defendant through their criminal conduct. In a fraud case, it may include the full value of the fraud, not just the profit made. In a drug supply case, it includes the full value of the drugs supplied, not just the profit. The benefit figure can therefore be very large in relation to the actual gain made by the defendant.

Where the court applies the criminal lifestyle provisions (which apply where a defendant is convicted of certain specified offences or has a pattern of criminal conduct), it may make assumptions that all property held by the defendant and all transfers of property over the previous six years represent the proceeds of crime, unless the defendant can show otherwise. This can produce a very large benefit figure.

The available amount is the value of the defendant’s realisable assets at the time of the confiscation hearing. It includes all property held by the defendant and any property held by others to which the defendant is entitled. The confiscation order is made in the lesser of the benefit figure and the available amount. If the available amount is less than the benefit, the order is made in the available amount but can be increased later if further assets are discovered.

David challenges both the benefit figure and the available amount. Arguments include: that the prosecution’s calculation of benefit is overstated; that the criminal lifestyle assumptions do not apply or have been rebutted; that specific assets included in the available amount do not belong to the defendant or are subject to third-party interests; and that the available amount is lower than the prosecution asserts. Where third-party assets are affected, David advises third parties on applications to protect their interests. He also makes applications to vary confiscation orders where circumstances change after the order is made.