Managing finances during a criminal investigation can be difficult, especially if you are facing potential confiscation proceedings upon conviction. Authorities may seek a confiscation order under the Proceeds of Crime Act 2002 if you have received financial benefits from the particular criminal conduct of which you are convicted. Defendants in these cases often have questions about how much money can be recovered, and whether assets they acquire after the confiscation proceedings have taken place can be subject to the order.

The Proceeds of Crime Act gives the courts wide-ranging powers to confiscate money and assets gained through criminal activity and, as such, there are only limited restrictions placed on criminal and civil recovery powers. The police and other authorities can impose account freezing orders to restrict access to funds with relative ease, or use restraint orders to secure funds and assets, while they investigate their provenance. Naturally, this can be inconvenient for the owners of legitimately acquired assets and funds at risk, and can create uncertainty for those involved in criminal investigations. In the worst cases, it can put these legitimately obtained monies and assets at risk - particularly for cryptocurrency and digital assets that are subject to dramatic market fluctuations.

It is vital to engage a solicitor at your earliest opportunity if you are involved in an investigation that may relate to criminal property or finances (such as those into organised crime or money laundering offences). There is no straightforward answer to whether there are time limits in place to govern the Proceeds of Crime Act, but guidance from an experienced business crime solicitor can help you understand what to expect and start to put a defence in place from the outset. Here, the experts at JMW explain how confiscation works, the limitations that may apply to a confiscation order, and how you can best protect legitimately obtained monies and assets from recovery during enforcement proceedings.

What Is a Confiscation Order?

A confiscation order is made under the Proceeds of Crime Act after someone is convicted of a criminal offence and the court decides that the person has benefited financially from their offending. To fulfil a confiscation order, the court must:

• Calculate the benefit amount, a figure that represents the value of what was gained from the criminal conduct.
• Determine the available amount by calculating what the defendant currently owns or can realistically pay.
• Make a confiscation order for the lesser of the two figures.

Once the order is made, the defendant must repay the sum within a set period (often three months, although this can be extended up to six). If payment is not made, interest accrues on the debt, and enforcement action can follow, such as seizing assets or imposing additional prison time.

In this sense, there may be a time limit associated with the confiscation order for the defendant, but there is no fixed time limit after which a confiscation order expires.

How Long Can a Confiscation Order Last?

Once made, a confiscation order remains enforceable indefinitely until the recoverable amount has been paid in full, including any interest that has accrued. Failure to pay a confiscation order by the deadline leads to automatic interest charges, and can result in other penalties, including a prison sentence in default of payment. It is important to note that serving the default sentence for failing to make repayments does not cancel the debt, and the individual remains liable until the full amount (plus interest) is repaid.

There are several other enforcement actions the prosecution can take, which include:

• Freezing or seizing bank accounts and property owned by the defendant.
• Forcing the sale of assets obtained before, during or after the investigation.
• Deducting funds from pensions, inheritances or other income, even if it was derived legitimately.

The unpaid amount is treated as a civil debt to the Crown. This means enforcement officers can continue to pursue the defendant’s assets years or even decades later if the recoverable amount has not been paid back. For example, individuals have had pensions, inheritances and life insurance payouts seized many years after their original conviction. Given that the calculation is based on an amount that the defendant should be able to pay, the Crown Court expects that the debt should be paid quickly and the interest charged can be punitive. However much is outstanding, the Crown may continue to take recovery action as long as some of the debt remains unpaid.

Are There Any Time Limits for Confiscation Proceedings?

Although confiscation orders do not expire once they are put in place, the law puts time limits on the prosecution's ability to amend the details of the order. For example, the prosecution has six years from the date of conviction to apply for a reassessment of the benefit figure. Prosecutors may also ask the court to increase the amount payable if the defendant later acquires new assets that could be used to pay towards the original confiscation order.

The prosecution cannot apply for a separate confiscation order unless you receive a new criminal conviction, so there are unlikely to be any changes to the recoverable amount after the six year time limit has expired. However, while prosecutors cannot increase the benefit figure after this six-year period passes, they can still enforce the existing order.