We have a team of experienced solicitors dealing with cases involving confiscation orders under the Proceeds of Crime Act 2002 (POCA).

The term POCA is given to money or assets gained during the course of criminal activity. Confiscation proceedings only take place after someone has been convicted of an offence. More often than not the Prosecuting authority will take the view that the offences involved constitute a ‘criminal lifestyle’ under the Act. This can be done if the offence was said to have taken place over a period of six months or more.

The Crown Court will determine the defendant’s benefit from their offending – this is calculated by reference to the value of the property or financial advantage that a defendant has obtained from his criminal conduct.  It can also extend to assets other than those relating to the offence for which the defendant is convicted subject to certain qualifying criteria being met.

The Crown Court will determine the available amount – this is calculated by reference to the value of the defendant’s realisable assets less any payments that take priority over a confiscation order and any tainted gifts made by him/her. The defendant will be ordered to pay the benefit from his/her criminal conduct unless he/she can show that some or all of it is no longer available.  If he/she can do so, he/she will be required to pay the available amount.

A confiscation order is an order of the Crown Court which requires a convicted defendant to pay a sum of money to HMCTS immediately or, if he/she shows that he/she needs time to pay it, within a fixed period of time (initially limited to a maximum of 3 months, which is extendable to a total of 6 months). The Crown Court will also fix a period of imprisonment to be served if the defendant fails to pay the confiscation order. The length of the sentence is fixed by reference to the amount of the confiscation order. This is called the ‘default sentence’.

The benefit of crime figure may be much higher than you first think. An example of this would be if some of the money gained from the crime is used to pay off part of a mortgage. This payment would then ‘taint’ the rest of the property and the entire equity in the property would be a benefit of the crime not just the mortgage payment figure. At Haq Hamilton Solicitors we do not simply accept the Prosecution’s view of the benefit of crime and ensure that the figures are meticulously challenged. We are mindful that the higher the benefit figure, the higher a possible term of imprisonment if there is a non-payment of the confiscation order.