Proceeds of Crime Act 2002 (POCA)

POCA is the primary legislation in the UK for confiscating criminal assets and disrupting financially motivated crime. It applies both during and after criminal proceedings and includes civil recovery routes.

Key Powers Under POCA

Restraint Orders (Pre-Conviction)

• Issued before or during a criminal investigation or prosecution
• Freezing of a Defendant’s assets (e.g. bank accounts, property, vehicles) to prevent dissipation before a confiscation order can be made
• Can be applied even before charge if there is a “reasonable cause to believe” the person has benefited from criminal conduct

Key Features:

• Breaching a Restraint Order is a criminal offence
• Usually includes a disclosure obligation and a “living expenses” allowance
• Made ex parte (without notice), then reviewed with both parties present

Confiscation Proceedings (Post-Conviction)

After conviction, the prosecution can apply for a Confiscation Order, requiring the offender to pay a sum representing the benefit they gained from their criminal conduct.

Steps Involved:

• Benefit figure: The value the defendant gained from crime
• Available amount: What they actually have to pay (cash, assets)
• The Court can assume assets are from crime unless proved otherwise (especially for “criminal lifestyle” cases)

Default sentences (prison time for non-payment) can be imposed if payment isn’t made.

Civil Recovery (Part 5 POCA)

• Used when there is no conviction, but assets are believed to be the proceeds of crime
• Based on the balance of probabilities (not beyond reasonable doubt)
• Action is taken in the High Court, often by the NCA or SFO

Cash Seizure & Forfeiture

• Authorities can seize cash or listed assets (e.g. jewellery, crypto) worth £1,000 or more if suspected to be criminal property
• They can be forfeited by the Magistrates' Court even without a conviction

Enforcement Action (POCA Confiscation)

If a confiscation order is made and not paid, the Court can:

• Enforce by civil means: Warrant of control (bailiffs), charging orders on property, third-party debt orders.
• Impose default sentences:
  • 6 months to 14 years depending on amount unpaid
  • Sentence does not wipe the debt – payment is still required.

Defence Considerations

• Challenge the benefit figure: It may include assumptions or inflated amounts
• Challenge the available amount: Dispute ownership, liabilities, or valuation
• Varying Restraint Orders: Applications can be made for increased living expenses, legal fees, or to sell property to release equity
• Negotiation: Settlements are often negotiated between the CPS and defence

Summary of Key Terms

Restraint Order - Freezes assets during investigation or prosecution

Confiscation Order - Court order to repay criminal benefit after conviction

Civil Recovery - Non-conviction-based recovery of criminal property

Default Sentence - Prison time imposed for failing to pay confiscation order

POCA Enforcement - Action taken to recover money / assets after order made

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