Playing POCA

Local authorities as well as police authorities can use confiscation powers under the Proceeds of Crime Act. Dave Hayward and Peter Scarborough give a brief introduction to how the regime works.

The Proceeds of Crime Act 2002, was introduced in early 2003. One of the main purposes of the Act was to replace and strengthen the confiscation provisions that had, until that time, been available to criminal prosecutors under the Drug Trafficking Act 1994 and the Criminal Justice Act 1988, (as amended).

The Act extended the powers of law enforcement investigators to seize cash for the purposes of forfeiture, introduce new criminal offences relating to money laundering matters and allowed Prosecutors to make application for restraint proceedings in the Crown Court for the first time, but it is the confiscation provisions that are the subject of this note.

Though confiscation is often seen as something only applicable to police forces, it can be used by local authorities as well.

Confiscation proceedings may only be brought against a defendant who has been convicted of a criminal offence in the Crown Court where a financial benefit has been derived from that offence. These proceedings may be instigated upon application to the Court by the prosecutor or, indeed, the Court may proceed on its own volition. It is important to remember that the balance of probabilities standard of proof is used to determine any matter relevant to the confiscation process.

The Act created the position of Accredited Financial Investigator (AFI), who is an employee of a law enforcement agency, who conducts the necessary enquiries in order to establish the value of the benefit derived from criminal activity by the defendant and the value of any assets owned by that individual that may be available for confiscation. The AFI will then prepare a statement setting out the value of the benefit, together with details of the calculations made, and the value of the assets identified in order to assist the Court in determining the sum to be paid by the defendant.

An offender benefits from criminal conduct if he or she obtains property as a result of, or in connection with that conduct, and the benefit is the value of the property obtained. The benefit is not the profit from the conduct but the total value of the property received, i.e the gross receipts.

The confiscation provisions within the Act were designed to be draconian and determines that criminal conduct can be either “particular criminal conduct” or “general criminal conduct”. This leads to two distinct confiscation regimes:

• Particular criminal conduct depends, quite simply, on the value of the conduct that constitutes the offences of which the defendant has been convicted in the current proceedings and offences taken into consideration when deciding an offender's sentence. For example, a defendant convicted of two separate offences of theft of £60 and £40 would benefit by a total of £100.
• General criminal conduct means any criminal conduct of the defendant's, whenever the conduct occurred and whether or not it has ever formed the subject of any criminal prosecution. This regime is not as straightforward and depends on the concept of “criminal lifestyle”.

The criminal lifestyle regime is based on the principle that an offender who gives reasonable grounds to believe that he or she is living off the proceeds of crime should be required to account for his or her own assets, and should have them confiscated to the extent that he or she is unable to account for their lawful origin. The Act states that a person has a criminal lifestyle if he or she satisfies one or more of the following three tests:

1.     That he or she is convicted of an offence specified on Schedule 2 of the Act, which includes:

• a drug trafficking offence
• a money laundering offence under Section 327 (Concealing) or Section 328 (Arrangements) of the Act.
• an offence specified by the Secretary of State relating to people trafficking, arms trafficking, counterfeiting, intellectual property, pimps and brothels or blackmail.

2.     That he or she is convicted of an offence of any description, provided it was committed over a period of at least six months and he or she obtained not less than £5,000 benefit from that offence and/or any others taken into consideration by the Court on the same occasion. For example, an employee stealing £500 worth of property a month over a twelve month period would be caught by this test.

3.     That the defendant is convicted of a combination of offences amounting to “a course of criminal activity”. This third test is more complicated and the defendant satisfies it either one of two ways:

• he or she has been convicted in the current proceedings of four or more offences of any description where the benefit is not less than £5,000. For example, a person convicted of four offences of burglary who stole property to the value of £1,500, £2,750, £800 and £20 in respect of each offence.
• he or she has been convicted in the current proceedings of any one offence from which he or she has benefited AND has other convictions for any such offences on at least two separate occasions in the last six years. In addition, the total benefit from the offences on those same occasions must not be less than £5,000.

The significance of the criminal lifestyle test is that where a defendant has a criminal lifestyle the Court must look beyond the current proceedings, (the particular criminal conduct), and confiscate the proceeds of the offender's general criminal conduct, by applying assumptions for rebuttal.

Someone who has been prosecuted for a number of trading standards violations could well be caught by the criminal lifestyle test.

If the Court decides that the defendant has a criminal lifestyle, it must make four assumptions in order to decide whether he or she has benefited from general criminal conduct and if so decide the amount of benefit from such conduct. The four assumptions are:

1. Any property transferred to the defendant at any time after the relevant day was obtained by him or her as a result of his or her general criminal conduct. (The relevant day is the first day of the period of six years before proceedings were instituted). An example of this assumption may be the sum of any unidentified cash lodgements made to a bank account.
2. Any property held by the defendant at any time after the date of conviction was obtained by him or her as a result of his or her general criminal conduct.
3. Any expenditure incurred at any time after the relevant day was met from property obtained as a result of his or her general criminal conduct.
4. Any property obtained by the defendant was obtained free of any other interests in it.

The responsibility lies with the defendant to rebut these assumptions. An assumption will not be made if it is shown to be incorrect, or there would be a serious risk of injustice if the assumption were to be made. The main risk of injustice arises because the assumptions tend to overlap.

When the Crown Court makes a confiscation order it has to decide how much money is available to satisfy it and it does this by calculating the Recoverable amount and the Available amount.

The recoverable amount is an amount equal to the defendant's benefit and would be the amount due to be paid under the confiscation order. However, if the defendant can prove to the Court that he or she does not have that amount, then the Court can order him or her to pay what she has, and this is known as the available amount.

Dave Hayward is a consultant (non solicitor) with Wilkin Chapman Goolden Solicitors (www.wilkinchapman.co.uk) and Peter Scarborough is a former Detective Constable with the Economic Crime Unit of Lincolnshire Police.

For more information, contact Wilkin Chapman Goolden partner Jonathan Goolden on 0845 370 3117 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..