Confiscation orders and s.10A POCA

Barnaby Hone examines the role of section 10A of the Proceeds of Crime Act 2002 in the enforcement of confiscation orders – a useful tool for local authorities to get it right first time.

On 1 June 2015, the Serious Crime Act 2015 enacted section 10A of POCA 2002. The section is designed to allow Crown Courts to make a determination on third party rights at the confiscation hearing rather than leaving the decision to the enforcement hearing in the Magistrates Court or in another forum such as in the family courts.

This is an important addition to the law, as it allows the judge dealing with the confiscation hearing to make a decision on the facts when he is determining the order rather than leaving an important factor to later.

One of the most common impediments to enforcing an order is the rights of third parties. Arguments will be made at enforcement proceedings that an order cannot be enforced because the property subject to the order is simply not owned, either in the proportion set out in the order or in smaller proportion.

Therefore, following on from my earlier article about enforcement of confiscation orders in local authorities (LA’s) cases, I thought it would be useful to highlight how s.10A can be used by LA’s to make enforcement quicker and more cost efficient later on.

Powers under s.10A and associated sections

The enactment of s.10A allows a Judge to make a determination on the rights of a third party on a realisable asset which might be used to satisfy a confiscation order. The court can determine the extent of a defendant and third parties' interest in the asset if it gives the third party a ‘reasonable opportunity to to make representations’. A reasonable opportunity will include the opportunity to be represented at the hearing and make oral and written representations to the court.

The use of s.10A is in the court's discretion and should be used only where ‘it thinks it appropriate to do so’. Thus if the issue is particularly complex and due to be decided in another forum, or if the third party is for some good reason not able to take the opportunity to make representations, the court might not use s.10A. It is open for the defendant or third party to argue that the issue should be left to another forum such as the family court or to enforcement proceedings in the Magistrates Court.

If the court does proceed under s.10A, subsection (3) states the ruling it makes is conclusive in relation to the determination of the defendant’s interest for the purposes of issues that arise in connection with the realisation of the property or the transfer or an interest in that property. Put simply the matter cannot be re-litigated, in relation to the confiscation order, at a later stage. This includes applications for an enforcement receiver to be appointed [1].

Along with s.10A, s.16 (6A) was introduced which indicates that as part of the duties of the prosecution when providing their statement of information, they must provide the court with any information known to the prosecutor which the prosecution believes would be relevant for the court to make a determination under s.10A.

The Court also has the power under s. 18A to require a person it thinks might have an interest in the defendant’s property to give information to help it make a determination under s.10A.

Any failure to do so will allow the court to draw an adverse inference against the third party. Under s.18 (5) the court retains other powers to deal with parties who do not comply with the order, so a third party could face contempt of court proceedings if they do not comply.

It should also be noted that third parties do not have a right of appeal to the Court of Appeal where a s.10A order has been made and the third party has not had ‘reasonable opportunity’ to make representations, or where giving effect to the ruling would result in a serious risk of injustice.

How to use it

It is clear that getting a s.10A declaration will help enforcement in the long run, as the Court making the order will be best placed to determine the issue, rather than passing the issue down the line. It should also make enforcement easier. As I highlighted in my earlier article one of the persistent issues is third party claims on the realisable property: the determination of which, when slow, can possibly derail the whole enforcement process.

To get an s.10A declaration and use it, the following three stages are useful suggestions to follow. First is the information gathering stage. The FI should, as part of their investigation, identify which assets might have a third party interest. This is so the information can be included in the s.16 as now required by s.16 (6A). Also, so we can identify which assets to ask the court to make declarations in respect of.

When these assets and the third parties are identified, the court can be asked to require statements of information under s.18A. This is an important tool to allow the prosecution to determine what (if any) interest exists, and allow the prosecution to prepare for the s.10A hearing, which will be part of the overall confiscation hearing. It might be that information provided by the third party can be used to undermine the defendant’s case. It will be important to look into the third party’s links, and their strengths.

Second, if there are third party interests it is important to persuade the court to include a s.10A declaration hearing in the overall confiscation hearing. The s.16 should identify the third party interest if it is known at that stage. If it is not known at that point, the declaration should be requested when the interest looms onto the horizon. It is critical to bear in mind that the declaration hearing is about determining whether the third party can show they have an interest, and what that interest is. It is important that their assertions are properly tested.

Even if there is a plea agreement, a declaration should be pursued if there are third party interests: this is to make sure this issue does not raise its head later, when a less informed court might find it harder to make a decision. A third party who is properly represented could come to an agreement that would then be ratified by the court - but this type of arrangement should be approached cautiously.

Third, when we have a declaration the key is to use it as an enforcement tool. As I have mentioned in my previous article on enforcement, it is vital to keep pressure on defendants with confiscation orders so as to maximise the payment.

The advantage of having a declaration is that it should then be unambiguous as to what interest the defendant has in the relevant property. This should speed up enforcement and stop arguments being made in the Magistrates Court about a third party interest. Of course there could still be some arguments if a new third party surfaces, but the fact that there was a clear finding in the Crown Court will be of benefit to prosecution.

Conclusion

Use of s.10A proceedings will save local authorities money as the matter does not have to be re-litigated and it gives them a clear ruling on which to base enforcement. There will of course be exceptions to this rule, but in my view s.10A should be used in all cases unless there is an exceptional reason not to.

Barnaby Hone is a barrister at Drystone Chambers. He can be contacted on or This email address is being protected from spambots. You need JavaScript enabled to view it.. Barnaby will be delivering a POCA masterclass on 27 June at the Chartered Trading Standards Institute’s annual conference in Harrogate.

[1] Section 51 (8B) POCA 2002 as amended by SCA 2015.