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What Is Confiscation Under POCA?

Introduced to enhance the effectiveness of asset recovery in England and Wales, the Proceeds of Crime Act 2002 (POCA) was designed to deter crime by removing the financial incentives for criminal conduct. Confiscation Orders can be pursued following a conviction, focusing on the principle that crime should not pay.

What is the purpose of a Confiscation Order under POCA?

The primary purpose of Confiscation Orders is to deprive offenders of the financial benefits gained from their illegal activities. By implementing a robust mechanism to seize assets derived from crime, the Courts aim to reduce the attractiveness of criminal activity. This approach serves not only as a deterrent but also as a tool to ensure that criminals cannot reinvest the proceeds of crime into further illegal operations. In practice, Confiscation Orders seek to remove any property, funds, or valuables obtained through unlawful means, thus attempting to return offenders to the financial position they held prior to committing the crime.

Another critical aspect of Confiscation Orders is restitution. While the primary objective remains focused on reducing criminal profits, the proceeds seized may also be used to compensate victims of crime or cover the costs associated with law enforcement and prosecution efforts. This reinforces the notion that Confiscation Orders are an integral part of achieving justice.

What is meant by a criminal lifestyle?

One of the distinguishing features of POCA’s approach to confiscation 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, specific criteria determine whether a person has a criminal lifestyle, allowing the authorities to presume that their assets and income are derived from criminal activity unless proven otherwise.

Being convicted of one of the following offences will result in the criminal lifestyle provisions being applied automatically:

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

Once a person is deemed to have a criminal lifestyle, the Court may take a more comprehensive view of their finances, applying assumptions that all their assets and income are connected to criminal conduct.

These assumptions are applied during the confiscation process, potentially resulting in a more extensive seizure of property and assets than would otherwise be possible. An expert Criminal Defence Solicitor can challenge these assumptions by providing legitimate explanations and evidence demonstrating that particular assets or income sources are not connected to criminal activity. The burden of proof, therefore, partially shifts to the Defendant in these cases, as they must refute the presumptions made under the criminal lifestyle provision.

What is the process of making a POCA Confiscation Order?

The procedure for making a confiscation order under POCA is initiated following a conviction. The Crown Court must proceed to a confiscation hearing where the following two conditions are met:

  • A Defendant has been convicted of an offence before the Crown Court.
  • Either the Prosecutor asks the court to proceed to a confiscation hearing, or the Court believes it is appropriate.

Using the Prosecution’s statements and supporting evidence, the Court will decide your benefit from the general or particular criminal conduct. It will then decide on the ‘recoverable amount’, equal to the benefit obtained.

In many cases, the Prosecution’s assessment of the benefit obtained is significantly overstated.

If the Defendant can prove the ‘available amount’ (what can be paid) is less than the benefit from the conduct concerned, then the recoverable amount will be assessed as the available amount or a nominal amount if the amount available is nil. 

The available amount is calculated by adding the total of all your assets minus the value of your debts and the total value of any tainted gifts. All calculations are taken from the time the order is made.

Following the determination of the recoverable and available amounts, the Court will issue a Confiscation Order, stipulating the sum the offender must pay.

Failure to comply with the order can result in additional penalties, including extended prison sentences and further enforcement measures, such as the seizure of assets by bailiffs or other enforcement agents.

Defendants can appeal Confiscation Orders on various grounds, including disputes over the assessed benefit amount or challenges to the classification of a criminal lifestyle. Appeals must be substantiated with relevant evidence, and successful appeals may lead to a reduction or dismissal of the Confiscation Order.

How can a Proceeds of Crime Solicitor help in Confiscation Proceedings?

Whilst confiscation proceedings under POCA can seem daunting, there is considerable room for a robust defence, especially regarding the benefit amount. A Criminal Defence Solicitor will carefully analyse the alleged benefit using the skills of forensic accountants and aggressively challenge the amounts claimed. They will also force full disclosure from the Prosecution, the results of which often dramatically reduce the recoverable amount.

Concluding comments

For those facing POCA proceedings, specialist legal advice and representation is essential. The Court’s powers in this area are considerable; for example, it can revisit Confiscation Orders if new assets come to light after the initial proceedings.

To get immediate help and support, please call our office today on 02476 231000 or emailenquiries@askewslegal.co