Being convicted of a criminal offence is only part of the picture in many cases — under the Proceeds of Crime Act 2002 (POCA), the state can also pursue confiscation of assets believed to represent the financial benefit of criminal conduct. Understanding how this process works is essential if you're facing proceedings under this legislation.
What Is POCA?
POCA gives courts the power to confiscate money and assets that a defendant has obtained through criminal conduct, going beyond the original offence to consider the defendant's overall financial benefit — sometimes including their general "criminal lifestyle" rather than just the specific offence.
How Does the Confiscation Process Work?
1. Restraint Orders
Early in an investigation, prosecutors can apply for a restraint order, freezing a defendant's assets to prevent them being moved, sold, or hidden before confiscation proceedings conclude. This can significantly restrict access to bank accounts, property, and other assets, even before conviction.
2. Confiscation Hearing
Following conviction, the court holds a separate confiscation hearing to determine:
Whether the defendant has a "criminal lifestyle" (based on specific legal criteria, such as the nature and number of offences)
The extent of the defendant's benefit from criminal conduct
The defendant's available assets to satisfy any confiscation order
3. The "Criminal Lifestyle" Assumption
Where a defendant is found to have a criminal lifestyle, the court can apply certain legal assumptions — for example, that property acquired in the six years before proceedings represents the benefit of criminal conduct, unless the defendant can show otherwise. This reverses the usual burden of proof in a way that makes early, specialist legal advice essential.
4. Calculating the Confiscation Order
The court calculates the confiscation order based on the lower of the defendant's benefit figure and their available assets. This can include property, savings, business interests, and other assets — even those not directly connected to the offence itself.
What Happens If You Can't Pay?
If a defendant fails to pay a confiscation order, they face a further prison sentence in default — in addition to any sentence already imposed for the underlying offence. This makes it critical to properly understand and, where appropriate, challenge the confiscation calculation.
Can a Confiscation Order Be Challenged?
Yes. There are several important areas where confiscation calculations can be challenged, including:
Disputing the "criminal lifestyle" assumptions where evidence suggests assets were legitimately acquired
Challenging the valuation of assets or the calculated benefit figure
Demonstrating that certain assets don't represent proceeds of the criminal conduct
Raising issues of proportionality, particularly in borderline cases
Why Specialist POCA Advice Matters
POCA proceedings are highly technical, involve reversed burdens of proof in some circumstances, and can have consequences far exceeding the original criminal sentence. Specialist legal representation is essential to:
Properly challenge the prosecution's benefit calculations
Protect legitimately acquired assets from confiscation
Negotiate realistic payment terms where an order is made
Avoid the risk of a default prison sentence through proper case management
How We Can Help
Our team has significant experience defending clients in POCA confiscation proceedings, from restraint order applications through to complex confiscation hearings. We work to protect our clients' legitimate assets and ensure confiscation calculations are properly and fairly challenged.
