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Home » Complex Casework Unit » Proceeds of Crime

Proceeds of Crime Act

The Proceeds of Crime Act 2002 (POCA) came into force in March 2003. The purpose of a confiscation order is to deprive the offender of the proceeds of his or her crime.

Glossary and explanation of terms

Restraint Order:

A restraint order is an order of the Crown Court that restrains (prevents) any person named in the order from dealing with property held by him without either the permission of the court or, if the order allows, the person who applied for the order. It is an order obtained before conviction and is draconian in nature. Under Section 41 of the Proceeds of Crime Act 2002 applications for Restraint are made in the Crown Court but only where all of the relevant offences arise on or after 24/3/03 and when there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct.

Realisable Property:

Realisable property is any "free property" held by the defendant or anyone to whom he has made a "tainted gift". If property is not realisable property then it cannot be restrained. The term "free property" refers to property that is not subject to: -

  • a forfeiture order either under the Misuse of Drugs Act 1971 or the Terrorism Act 2000,
  • a deprivation order under the Sentencing Act.
  • an interim receiving order,
  • a recovery order
  • or an order for the detention or forfeiture of seized cash under the civil recovery provisions.

The term "property" covers all property wherever situated and includes money, real or personal property, a thing in action, or other intangible or incorporeal property. References to an interest in land are to any legal estate or equitable interest or power and references to an interest in relation to property other than land include references to a right (including a right to possession).

Confiscation Order:

The making of, or more accurately the satisfaction of, a confiscation order is the goal which we seek to achieve in redressing the balance involving the proceeds of crime. It is an order made upon conviction, whereupon an enquiry is made of the nature and extent of a defendant's benefit from crime, ultimately determining what should be recovered from him in terms of what assets there are available.

Nominal Order:

Nominal Orders worth £1.00 are granted where defendants have no assets or means to pay a confiscation order. The reason to seek a nominal order is that in future should the defendant come into new assets or assets previously unknown but have become readily identifiable then all that remains is to seek to increase the nominal order to the value of the criminal benefit in the proceedings to which the defendant has already been convicted or to the value of his new found assets; whichever value is lowest.

Benefit:

A person benefits from conduct if he obtains property as a result of or in connection with the conduct. Where a person obtains a pecuniary advantage as a result of or in connection with conduct he will be deemed to have obtained a sum of money equal to that advantage. References to property or a pecuniary advantage obtained in connection with conduct include that obtained both in that connection and some other. If a person benefits from conduct his benefit is the value of the property obtained.

Available Amount:

The starting point is that the recoverable amount is an amount which is equal to the defendant's benefit from his criminal conduct. It is this figure that the court should require in the making of a confiscation order. If the nature of the defendant's conduct is such that an award of compensation is required to be paid to the victim, then that figure should come out of the confiscation order. It is much easier to enforce a confiscation order and there is the risk of the default sentence being imposed. If a defendant has the means he could be ordered to pay both a confiscation order and compensation. It may appear like a double whammy but that is what the legislation intended where possible.

Default Sentence:

Failure to pay the order by the due date may also result in the court committing you to the consecutive term of imprisonment as ordered by the Crown Court for non payment. You should also note that you cannot choose to serve the default sentence in lieu of payment, as service of the sentence will not erase your responsibility to satisfy the confiscation order.

Time To Pay:

The amount ordered to be paid under a confiscation order must be paid on the making of the order. But if the defendant needs time to pay he may be allowed 6 months which can be extended on application in exceptional circumstances but must not exceed 12 months in total.