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POCA: The Improper Use of Section 10 Assumptions

Defendants subjected to Proceeds of Crime Act 2002 (POCA) proceedings following a criminal conviction often find the process irrational and illogical. Without the help of an experienced POCA Solicitor who has knowledge of this incredibly complex area of law, Defendants risk wild recovery amounts being applied. My recent work has involved advising and representing clients who have been made subject to a disturbing trend of Prosecutors improperly using POCA’s section 10 ‘criminal lifestyle’ assumptions to create additional benefits, even in cases where the amount the Defendant benefited from their crime/s was agreed during their trial.

What are the assumptions under section 10 of POCA?

One of the distinguishing features of asset confiscation under POCA is the concept of a ‘criminal lifestyle’. This classification allows for a more extensive investigation into the financial background of the offender and widens the scope of assets that may be subject to seizure. Under section 75 of the Proceeds of Crime Act 2002 a person is deemed to have a criminal lifestyle if:

  1. The offence falls under Schedule 2 (see below),
  2. It constitutes conduct forming part of a course of criminal activity, and
  3. The offence was committed over a period of at least six months and the Defendant benefitted from the conduct.

Schedule 2 references the following offences:

  • Drug trafficking.
  • Money laundering.
  • Slavery offences
  • Directing terrorism.
  • People trafficking.
  • Arms trafficking.
  • Counterfeiting.
  • Intellectual property.
  • Prostitution.
  • Blackmail.

If a Defendant has a criminal lifestyle, under section 10 of POCA, the Court will proceed to make four assumptions, namely.

  1. Any property transferred to the Defendant after the relevant date resulted from criminal conduct.
  2. Any property held by the Defendant at any time after the relevant date resulted from criminal conduct.
  3. Any expenditure incurred by the Defendant at any time after the relevant date resulted from criminal conduct.
  4. For the purposes of valuing any property obtained (or assumed to have been obtained) by the Defendant, no one else had any other interest in it.

How are Prosecutors improperly using section 10 assumptions

Recently I have noticed a pattern occurring wherein the Prosecution simply relies upon the section 10 assumptions without considering and taking a pragmatic view of the actual value of the benefits obtained from the Defendant’s criminal conduct.

For example, I recently had a client that was convicted of 29 counts of theft. The total value of the benefit obtained from the crime was £285,699.11. This consisted of the value of each individual theft. There was no suggestion that any further benefit had been obtained.

As I expected, the Prosecution asserted that the Defendant’s benefit from their criminal conduct was £285,699.11. However, the four assumptions under section 10 of POCA were then applied and a further £60,000 of unidentified benefits was added to the aforementioned sum, namely by the way of assumed illegitimate monies being credited to a bank account.

This is an example of an improper use of the section 10 assumptions, and it is far from an isolated case. If the exact benefit, down to a specific amount, is proven at trial, it is wrong for the Prosecution to rely on the four section 10 assumptions and fabricate additional benefits.

In cases similar to the one I have used as an example, when establishing a benefit obtained by a criminal lifestyle, the Prosecution must consider:

  • the facts of the case, and
  • the findings at trial.

The Prosecution should then adopt a pragmatic approach for the purposes of POCA. For example, when a specific benefit figure from the criminality has been established at trial and there are no Co-Defendants to pursue, it is disproportionate and unjust to apply the section 10 assumptions and assume additional benefits have been obtained. And if the Court concluded that the section 10 assumption should still be applied, regardless of the fact a specific benefit amount was uncontested at trial, a fully reasoned explanation should be provided.

Concluding comments

The purpose of confiscation proceedings is for the Court to make an order requiring the Defendant to pay a sum of money equivalent to the benefit they obtained from their crime or criminal lifestyle. But a Confiscation Order is not a ‘fine’ and case law firmly establishes that it must be proportionate.

Because proceeds of crime legislation is incredibly complicated and extremely difficult for a lay person to understand, Defendants are left vulnerable to the often-used Prosecution tactic of applying section 10 assumptions instead of looking at the facts as a whole and considering whether, to protect the Defendant’s right to fair and just proceedings, a new and separate prosecution should be ordered.

If POCA proceedings are being brought against you, it is crucial you seek expert legal advice. A specialist POCA Solicitor can advise and represent you, ensuring your best interests are protected. To get immediate help and support, please call our office today on 02476 231000 or emailryan@askewslegal.co