The Proceeds of Crime Act 2002 (POCA) allows authorities to recover assets gained through criminal conduct, often long after a conviction has taken place. In some cases, this can include property or money inherited years later.

When a defendant has an existing confiscation order, the prosecution may argue that any inheritance represents a new asset capable of satisfying an outstanding benefit figure. Under section 22 of POCA, the Crown Prosecution Service (CPS) can return to court and ask that the confiscation order be varied to reflect the defendant’s increased wealth.

Here, we explain how this process works, and how a specialist POCA defence lawyer can protect your inheritance.

Why Inheritance Can Be Targeted Under the Proceeds of Crime Act

Confiscation proceedings are designed to recover the value of benefit obtained from criminal activity. During sentencing, the Crown Court determines two figures:

• The benefit figure: the total value the defendant is deemed to have gained from their offending.
• The available amount: what they can pay at that time.

At the time the confiscation order is made, the court will impose an amount up to the lesser of the benefit figure or the available amount. However, if the available amount used was lower than the benefit figure, the unpaid portion of the benefit figure remains outstanding. The prosecution may revisit the order under Section 22 of POCA if the defendant later acquires additional realisable assets. This might include:

• Money or property inherited from a deceased relative.
• A share in jointly owned property.
• Funds paid from a trust or estate.

Even though inheritance is not linked to the original criminal conduct, it can still be treated as an asset available to repay the benefit figure. The law allows the court to adjust the amount payable if it considers this fair in the circumstances, and applications of this kind can occur years after the initial conviction.

How Section 22 Applications Work

The process begins when prosecutors believe that a defendant now has assets that could be used to pay towards the original benefit figure.

The court must decide whether it is just to vary the order. It will consider:

• The source of the new assets, which might be an inheritance or compensation payment.
• The time elapsed since the confiscation order was made.
• The amount already paid and whether the defendant has complied with previous payment orders.
• The effect that further payment would have on the defendant and their family.

Section 22 of POCA was originally designed to help the prosecution recover the value of benefit obtained from criminal conduct, but its use has expanded to include legitimate wealth acquired long after a conviction.

Case law has shaped how these applications are handled. In R v Padda (2014), the Court of Appeal acknowledged that assets gained through legitimate business activity could be seized under section 22, although judges retain the discretion to consider what is just.  Specific considerations are given as to what constitutes a “just” order in the context of section 22, including:

• The length of time since the original confiscation order was made.  
• The amount of the confiscation order outstanding. 
• The impact of any further payment contemplated.

Later, in R v Mundy (2018), the court reinforced that applications must weigh the time since conviction, the amount already recovered and the defendant’s personal circumstances.

In R v Peacock (2012) the Supreme Court observed the longer the period of time which had passed since conviction to confiscate assets, the more unfair a s22 application would appear.

Also, it could be argued that in light of Article 1, Protocol 1 of the European Convention of Humans Rights and Fundamental Freedoms Act, a s22 application could involve a disproportionate interference with property rights.

If you are facing a situation where the court is reconsidering the available amount in a confiscation order, specialist legal advice is essential. The court has wide discretion when deciding whether it is just to vary the order, and a timely and well-prepared response can make a real difference to the outcome.

JMW’s business crime solicitors have extensive experience contesting section 22 applications. We will examine the prosecution’s evidence, challenge unfair assumptions and argue that legitimate wealth - including inheritance - should not automatically be treated as part of the proceeds of crime.

What Happens if You Do Not Pay?

If the court decides to vary upwards the confiscation order and the defendant does not pay the newly calculated amount, enforcement proceedings may follow. The court can impose a default sentence, which could lead to imprisonment.

In cases of non-payment, the prosecution may also apply for the appointment of a management receiver to sell property or other assets to recover the debt. The process can affect property held jointly with others and may extend to the defendant’s interest in family homes or financial accounts.

Although Magistrates’ Courts handle the enforcement of payment orders, more complex cases are typically heard in the Crown Court. Once enforcement proceedings begin, additional costs and interest can accrue, increasing the total amount owed.