Proceeds of Crime Act 2002 (POCA) 

The Proceeds of Crime Act deals with money or property which is linked to offences that a Defendant has been convicted of, either by way of a guilty plea or a guilty verdict following a trial. 

The offences which would require POCA proceedings are separated into 2 categories and are dealt with differently depending on the type of offence(s); 

1. “Criminal lifestyle” offences (general criminal conduct) 

or 

1. Particular criminal conduct offences 

Proceeds of crime doesn’t just mean what money a convicted Defendant has made as a result of the offence(s). If, for example, a Defendant was part of a conspiracy with others, the evidence from their cases may be used to estimate your figure and vice versa.  

It isn’t as black and white as money made from your crime, it expands much further than this.  

The Prosecution will seek to ascertain a “Benefit figure” based on either the particular criminal conduct or criminal lifestyle, depending on the offence(s) a Defendant was convicted of. 

The Prosecution will then determine the recoverable “Available amount” based on what capital and assets a Defendant has in their possession or control at the time of the POCA proceedings. 

The Prosecution are keen to obtain as much as possible as the Crown Prosecution Serve receive 18% of any monies recovers, with the police receiving 32%. 

Criminal Lifestyle Offences (General criminal conduct)

If an offence that a Defendant in convicted of is considered a “criminal lifestyle” offence POCA proceedings will examine the benefit obtained from the conviction itself (particular criminal conduct) as well as all wealth which has passed through a Defendant’s hands in the last 6 years, no matter what happened to it (general criminal conduct). 

The 6 year period ends on the day the proceedings began e.g. date of the issue of summons or warrant, charge or requisition.

The Court must consider the following in relation to general criminal conduct (criminal lifestyle), making four assumptions under s10; 

1. Any property transferred to the Defendant within the 6 year period was obtained as a result of their general criminal conduct  

1. Any property held after date of conviction was obtained as a result of their general criminal conduct (it does not matter when the property was obtained). 

1. Any expenditure incurred within that 6 year period was met from property obtained as a result of their general criminal conduct. 
2. The Defendant is the only person with an interest in the property obtained (a court is permitted to determine the extent of a Defendant’s interest if they do not have sole interest). 

Offences which would fall under “criminal lifestyle” are; 

• Drug trafficking 
• Money laundering 
• Directing terrorism 
• Slavery 
• People trafficking 
• Arms trafficking
• Counterfeiting  
• Intellectual property 
• Prostitution and child sex 
• Blackmail 
• Inchoate offences (aiding, abetting or conspiring to any of the above) 

Particular Criminal Conduct

This category of offences only examines the benefit obtained from the conviction itself. The Court will likely already have a figure for the assumed benefit and, should it be concluded that this is accurate, the Prosecution will seek to recover it from any available assets or capital held by a Defendant. It is significantly less intricate than POCA proceedings dealing with “criminal lifestyle” offences. 

Offences of a “particular criminal conduct” could be;  

• Fraud  
• Tax evasion 
• Theft 
• Vehicle 
• Property 
• Shop 
• Burglary  

Next Steps

If you are arrested for any of the above offences the police may apply for a Restraint Order in respect of your bank accounts, cash or property that appears to belong to you. This is an Order which restricts your assets from being sold or used whilst you are being investigated and during any subsequent criminal proceedings.  

If a Defendant pleads guilty or is found guilty, following sentence, the POCA proceedings then begin. This involves their Defence team drafting various documents setting out the Defendant’s financial circumstances and challenging the Prosecution evidence where required; 

1. Affidavit Statement of Truth – Drafted by the Defence setting out the Defendant’s financial circumstances 

1. s.16 Statement – Once the Prosecution have investigated the information detailed in the Statement of Truth they will serve their own statement which will set out the suggested Benefit figure and Available amount. 

1. s.17 Statement – Defence response to the Prosecution’s Statement with any further observations, evidence and/or lines of enquiries 
2. Prosecution’s further response. 

It is important to carefully review the Prosecution’s statements and to try and reduce the Benefit figure and available amount as much as possible. This can be assisted by wage slips to prove legitimate earnings, receipts from selling personal items, invoices from work you have carried out, witness statements from employers or anything else which can evidence that money you obtained or held was from a legitimate source i.e. not the proceeds of crime. 

For the most part, the Defence and Prosecution go back and forth with their arguments (s.16 and s.17 statements) for a while before coming to an agreement on the final Benefit figure and any available amount. 

On rare occasions where an agreement is not reached, a contested hearing will take place before the Crown Court who must then decide the following under S6(4); 

1. Whether the Defendant has a criminal lifestyle 

1. If it decides that they have a criminal lifestyle, it must decide whether they have benefitted from their general criminal conduct 
2. If it decides that they do not have a criminal lifestyle, it must decide whether they have benefitted from their particular criminal conduct 

The Crown Court proceedings are dealt with by a Judge who will listen to the Prosecution and Defence evidence before making a decision on the above points. It is essentially a mini trial without a jury.  

The Judge will determine the Benefit figure and the Available amount. If a Defendant‘s Available amount falls short of the Benefit figure they will remain liable for the outstanding balance and should they come into a large sum of money in the future, such as inheritance or winning the lottery, the Prosecution will seek to recover the remaining balance. 

Should the police mention a Restraint Order to you or you are summonsed to attend Court in relation to any offence which will likely result in Proceeds of Crime Act proceedings please contact us for further advice.