The Crown Court has the authority to permanently deprive individuals and third parties of their assets through confiscation orders.
Confiscation proceedings can have a severe impact not only on the defendant but also on their family, business associates, and third parties with a legitimate interest in the disputed assets. Any property owned, controlled, or possessed by the defendant or their agents is subject to these proceedings. It is crucial that third-party interests are identified and asserted as early as possible—ideally before the confiscation process begins.
Confiscation proceedings are initiated by the prosecution after a defendant has pleaded guilty or been convicted of specific offences under Schedule 2 of the Proceeds of Crime Act 2002 (POCA), including fraud, money laundering, and drug supply. However, these proceedings are not limited to Schedule 2 offences; their scope has expanded to include offences such as planning violations and waste management crimes.
When a confiscation order is issued, the court does not take into account how the assets were acquired, even if they were obtained legally. If the assets are deemed to belong to the defendant, they can be liquidated to satisfy the confiscation order.
Confiscation proceedings often run parallel to restraint orders. If a defendant pleads guilty or is convicted, the prosecution may apply for a restraint order against them or any associated party to freeze assets that may later be subject to confiscation.
Once proceedings begin, the court sets a timeline requiring the prosecution to serve a Section 16 Statement, also known as the prosecutor’s statement. This document estimates:
Under POCA, the prosecution can assume the defendant’s past financial gains are linked to criminal activity, even without direct evidence, if the offence meets statutory criteria. Once the benefit figure is determined, the prosecution can apply to liquidate all of the defendant’s assets to satisfy the order.
The defence has the opportunity to challenge these calculations by filing a Section 17 Statement, presenting the defendant’s financial position and disputing unfair assumptions.
At Investigations Law, we frequently find that prosecution figures are significantly inflated. Through careful analysis and negotiation, we have successfully reduced these amounts—sometimes by millions of pounds. In one case, the initial benefit figure was set at £32 million, but by the end of the proceedings, the final confiscation order was reduced to just £1,500.
If an agreement cannot be reached between the prosecution and the defence, a final hearing will be scheduled before a judge. The judge will:
Defendants can request an extension to pay the confiscation order—up to three months initially, with a possible extension of another three months in exceptional cases. If the order remains unpaid, enforcement action will begin, which may include:
A key issue in confiscation cases is hidden assets. The court assumes that any undisclosed assets are available for confiscation. If the prosecution claims the defendant has hidden assets, this can lead to substantial long-term issues. Careful negotiation is essential to prevent unfair assumptions from being built into the confiscation order.
Confiscation orders are lifetime orders, meaning that even after paying the realisable asset amount, the authorities can revisit the order if the defendant acquires new assets. This includes future earnings, business profits, or inheritance.
Even after satisfying the realisable asset portion of the order, defendants must ensure:
If a confiscation order is unreasonably high or becomes impossible to pay, defendants may apply for a Certificate of Inadequacy under Section 23 of POCA. This application allows the court to reassess the order if:
A successful application can reduce or discharge the remaining order and may also affect any outstanding default sentence.
Confiscation proceedings are complex and can have devastating financial and personal consequences. At Investigations Law, we have extensive experience in:
If you are facing confiscation proceedings, early intervention is key. Our expertise can significantly impact the outcome of your case, protecting your assets and securing the best possible result.
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