Following a criminal conviction, the prosecution may start confiscation proceedings under the Proceeds of Crime Act 2002 (POCA) to try to show that you have financially benefited from criminal conduct. If successful, the court can make a confiscation order requiring you to pay a specified sum.
Confiscation orders only “bite” on your realisable assets, but the way the figures are calculated is highly technical and can be extremely harsh if not properly challenged.
Kings Solicitors have extensive experience in defeating or significantly reducing confiscation orders through careful analysis of the prosecution’s case and robust challenge to their financial calculations.x
How the Prosecution Builds Its Confiscation Case – The s16 Statement
The prosecution’s case in confiscation proceedings is set out in a formal s16 Proceeds of Crime Act 2002 statement. This is a key document and usually includes:
- Details of the offences of which you have been convicted
- Evidence from the trial or prepared for trial
- Financial information obtained during the investigation
- Information you have provided (for example, in any s18 statement or under a restraint order)
- Material from banks, financial institutions and other sources (often obtained via production orders)
- Analysis by a financial investigator
The main body of a s16 statement often runs to 10–30 pages, with attached schedules, spreadsheets and appendices that can run to hundreds of pages.
Kings Solicitors will examine this statement in detail, identifying errors, double counting, incorrect assumptions and unjustified inferences.
Understanding “Benefit” in Confiscation Proceedings
In confiscation law, “benefit” has a special statutory meaning. It does not simply mean what you have personally gained in everyday terms.
There are two main types of benefit considered:
Benefit of the offences (particular criminal conduct)
- The s16 statement sets out what the prosecution say you obtained from the specific offences of which you were convicted.
- This may not always be straightforward – for example, where there are incomplete records, allegations of cash theft, drug supply without accounting records or participation in a conspiracy.
Assumed benefit (criminal lifestyle)
- In many cases the prosecution will argue you have a “criminal lifestyle”, allowing them to rely on statutory assumptions under s10 POCA.
- These assumptions treat your income, expenditure and assets over a period (often six years prior to charge) as having come from crime, unless you can prove otherwise.
The prosecution may also assert benefit from:
- Profits of otherwise legitimate business tainted by criminality
- Pecuniary advantage (e.g. tax evasion, VAT fraud, duty evasion)
- The value of seized assets such as drugs
Kings Solicitors will challenge whether the prosecution’s concept of “benefit” is legally and factually justified, whether amounts are correctly calculated, and whether they have been “obtained” by you personally.
Criminal Lifestyle and Statutory Assumptions
If the criteria for criminal lifestyle are met, the prosecution can ask the court to make far-reaching assumptions about your finances.
The s16 statement will then usually:
- Review all deposits into your bank and credit card accounts since the “relevant day” (often six years before the date of charge)
- Examine your expenditure and major purchases
- Consider Land Registry records, mortgage statements and conveyancing files
- Look for patterns of unexplained income or assets
These assumptions allow the prosecution to claim that:
- Receipts paid into your accounts are criminal benefit
- Assets held since conviction are representing the proceeds of crime
- Certain expenditures were funded from criminal conduct
The defence task is to rebut these assumptions where they are incorrect, show legitimate sources of income and funding, and prevent double counting.
The “Available Amount”
The prosecution must also address your “available amount” – the value of assets against which any confiscation order can actually be enforced.
This is defined by POCA and typically includes:
- The current market value of your assets
- Less secured liabilities (e.g. mortgages)
- Plus the current value of any “tainted gifts” you have made
Importantly:
- Many liabilities (e.g. unsecured debts, normal bills) are ignored
- Third-party interests must be carefully considered and protected
- Allegations of “hidden assets” or tainted gifts can cause major disputes
Kings Solicitors scrutinise the prosecution’s figures on the available amount, ensuring assets are correctly valued, third-party interests are recognised and unjustified “hidden asset” claims are resisted.
Challenging the s16 Statement and Confiscation Figures
Our work in confiscation cases includes:
- Checking whether “criminal lifestyle” criteria are truly met
- Confirming the correct “relevant day” has been used
- Examining all alleged benefit – both direct and assumed
- Exposing double counting between different categories of benefit
- Analysing bank statements, joint accounts and company structures
- Demonstrating legitimate income and funding for assets
- Challenging valuations of property, businesses and other items
- Testing assertions of tainted gifts or hidden assets
We use all of this to help prepare a detailed s17 statement (your formal response to the s16 statement) and to present a strong case at the confiscation hearing.
Forensic Accountants and Expert Assistance
In many confiscation cases, especially those involving large sums or complex financial histories, a forensic accountant can play a vital role.
A forensic accountant can:
- Analyse the prosecution’s financial schedules and spreadsheets
- Trace funds between accounts and entities
- Identify legitimate income sources
- Challenge assumptions about unexplained receipts and assets
The cost of a forensic accountant’s report can often be covered by criminal legal aid under prior authority arrangements.
Kings Solicitors work closely with experienced forensic accountants and other financial experts to expose flaws in the prosecution’s approach.
Serious Risk of Injustice and Proportionality
Confiscation law allows the court to depart from statutory assumptions where applying them would cause a “serious risk of injustice”. The court must also ensure that any confiscation order is proportionate and compatible with your rights.
We will argue against the use of assumptions, or against the level of confiscation sought, where:
- The figures are clearly excessive
- The assumptions do not reflect reality
- There are clear legitimate explanations for funds and assets
- The overall order would be disproportionate
Kings Solicitors are committed to reducing confiscation orders as far as possible – and, in some cases, to nil – through meticulous preparation, attention to detail and the strategic use of expert evidence.
FAQs
1. What is a confiscation order under the Proceeds of Crime Act?
A confiscation order is a court order made after conviction requiring you to pay a sum of money said to represent your financial benefit from criminal conduct.
2. When are confiscation proceedings started?
They are usually started after conviction, either at the Crown Court’s own initiative or at the request of the prosecution, when it is alleged you have benefited from crime.
3. What does “benefit” mean in confiscation law?
“Benefit” has a special legal meaning. It can include the value of property obtained, profits from tainted business activities, or financial advantages such as tax evasion, and does not just mean what you still have.
4. What is a s16 POCA statement?
The s16 statement is the prosecution’s confiscation case, setting out their calculations of your benefit and available amount and the evidence they rely on.
5. What is meant by a “criminal lifestyle”?
If certain criteria are met, the court may treat you as having a criminal lifestyle, allowing statutory assumptions that your income, expenditure and assets over a period come from crime unless you can prove otherwise.
6. What is the “available amount”?
The available amount is a defined term referring broadly to the current value of your assets (less secured liabilities) plus any tainted gifts. It is the maximum that can be ordered in confiscation.
7. Can I challenge the prosecution’s confiscation figures?
Yes. You can challenge both the benefit and available amount, as well as whether criminal lifestyle assumptions should apply and whether using them would cause a serious risk of injustice.
8. Do I need a forensic accountant for confiscation proceedings?
In more complex or high-value cases, a forensic accountant can be very helpful in analysing financial evidence and exposing errors or double counting in the prosecution’s figures.
