POCA and Confiscation Orders

POCA (Proceeds of Crime Act) is a complex area of law that involves extensive scrutiny of financial transactions spanning years. It is critical to have the assistance of skilled professionals who are experienced in this area of law when dealing with POCA cases. Grays Defence Solicitors is a law firm that defends clients in POCA cases and can provide expert advice and assistance if you or someone you know is facing investigation under POCA.

The primary objective of POCA is to prevent offenders from enjoying their illegally obtained assets, recover the proceeds of crime, and distribute them among legitimate channels. The law also aims to deter crime by giving relevant authorities far-reaching powers, such as the ability to recover assets through confiscation, civil recovery, cash seizure, and taxation of profits gained from crime. The authorities are also given various investigatory powers, including search and seizure and orders for the production or disclosure of information relevant to the investigation.

Confiscation is the most common recovery power used under POCA. Section 6 of the Act sets out that a confiscation order can only be made after conviction. It requires the subject to pay a sum equal to the benefit they have gained from their illegal conduct to the court. Failure to pay the debt to the court can result in a custodial sentence.

When determining the terms of a confiscation order, the court must differentiate between those who have benefited from their criminal conduct in the long term (those who have led a ‘criminal lifestyle’) and those who have only benefited from their ‘particular criminal conduct’ for which they have been convicted. This distinction is essential because a finding of criminal lifestyle permits the court to assume that all transactions carried out by the defendant within the previous six years are related to their criminal conduct. Where there is a criminal lifestyle, the prosecution will investigate the defendant’s financial activity over the previous six years and argue that it should all be paid back. The defence team must show that assets gained within the six-year period were not the proceeds of crime.

Section 75 of POCA establishes various circumstances that the court can rely on to establish a finding of criminal lifestyle, including drug trafficking, people trafficking, money laundering, and blackmail. The court will determine the recoverable amount (the monetary equivalent of the benefit) if criminal lifestyle is established and it believes the defendant has profited from their criminal conduct. However, if the defence can demonstrate that the defendant’s ‘available amount’ is less than the recoverable amount, the defendant will only be required to pay this lesser sum.