The Proceeds of Crime Act (POCA) 2002 is a piece of legislation that is designed to strip those who have been convicted or pleaded guilty to certain criminal offences of their 'ill-gotten' gains. For those who are convicted of offences in which they are considered to have 'benefited' from their particular criminal conduct, confiscation proceedings will likely be pursued. Financial gain through the sale of drugs, fraud offences or the sale of counterfeit goods, for example, can all lead to attempts at recovery. At confiscation proceedings, the court will determine the amount that the defendant has 'benefited' from criminal conduct, and calculate the funds that they have available to pay back.

In the majority of cases, the second figure, also known as the 'available amount', is significantly less than the benefit figure. Questions are inevitably raised by defendants in respect of this difference and what may be an alarmingly high million-pound benefit figure. Concerns may include:

• ‘Will I be required to pay this amount?’
• ‘Can my house or other assets be confiscated?’
• ‘Are jointly owned assets included?’
• ‘Can the prosecution return if I set up a business? If I inherit money? If I win the lottery?’

Unfortunately for those who are facing a confiscation order, the answer is yes. Under section 22 of POCA, the prosecution is entitled to revisit the original confiscation order and now appears to be doing so on an increasingly regular basis.

What can be taken in confiscation proceedings?

Confiscation proceedings under the Proceeds of Crime Act 2002 enable the Crown Court to deprive a defendant of any financial benefit obtained from criminal activity. The scope of what can be taken under these proceedings is wide-ranging, and it is not only the defendant's property that may be recovered, but gifts they have purchased for other people.

Confiscation proceedings are not limited to the specific assets used in or derived from an offence - for example, stolen goods. Instead, they focus on the benefit a defendant has obtained from criminal conduct, whether particular conduct (meaning the benefit obtained from the offence for which the defendant has been convicted) or the general conduct of a 'criminal lifestyle' where there is a pattern of offending.

When calculating the defendant's available amount, the court will assess a range of assets that they own or have an interest in. Any of the following may be subject to confiscation:

• Property held in the defendant’s name, including bank accounts, cash, vehicles, shares, and other personal property. This can include a family home and other assets of which the defendant is not the primary beneficiary.
• The defendant’s share in any jointly held property, although only the defendant's interest in the property is usually subject to recovery.
• Property and assets transferred to third parties for no or inadequate consideration, especially after the commission of the offence. These may be treated as assets that are still available to the defendant (so-called tainted gifts).
• If the court decides the defendant has a criminal lifestyle, it can assume that any property held, acquired, or expenditure incurred in the preceding six years came from criminal conduct, unless the defendant can prove otherwise.

The court can include assets that are held by a company or other third party under the defendant’s control, including those the suspect of acting as proxies or holding property on the defendant’s behalf. If the defendant benefits from or controls trust assets, these may be included. The court will investigate trust and corporate structures if it suspects these were used to hide or shield criminal property.

On the face of it, the proceedings are not meant to be punitive but aim to recover the value of the benefit obtained. However, confiscation orders are enforced thoroughly and, in an increasing number of cases, the prosecution will return - sometimes years after the offence - to increase their calculation of your available amount and thereby increase their recovery.

What happens if the prosecution tries to confiscate more money or property later?

If you inherit property or money, or your situation otherwise changes, the Crown Prosecution Service is empowered to revisit and amend confiscation orders. This means that, even if you do not own a house at the time of the initial confiscation proceedings, it is not necessarily safe from an attempt at confiscation. The prosecution can make an application under section 22 of the Proceeds of Crime Act 2002 and present new evidence to have your available amount recalculated, and potentially to have further assets seized.

What is an application under section 22 of POCA?

This  somewhat harsh and punitive area of law permits the prosecution, where a confiscation order has been made in the past, to apply to the Crown Court to recalculate a defendant's 'available amount'; in other words, a reassessment of their current wealth. This will apply where the prosecution considers that an individual who was previously subject to a confiscation order now has further assets available to them to 'pay off' the outstanding benefit figure.

Once an application is made, the court will be required to consider whether it is just, taking into account all of the circumstances, to vary the confiscation order. The court is entitled to increase the amount that the defendant is required to pay, up to the total benefit figure.

When might an application be made?

At the time that an original confiscation order is made, defendants are often under the impression that a confiscation order will never or rarely be revisited (for example, unless they win the lottery) and that amending the confiscation order is not possible after a certain timeframe. This is not the case.

An order may be revisited after any period of time, from two years to 20 years and beyond. It may be in a number of circumstances and certainly not confined to lottery wins. Applications are being made more commonly in instances where a property has increased in value and there is therefore equity belonging to the defendant. It may be that funds in a bank account have increased due to employment or a new business being set up, or a pension can now be accessed. A vehicle may have been purchased and the value of the vehicle now deemed as an asset that could be sold and paid towards the confiscation order.

In summary, the application is a reassessment of the defendant's current worth and assets and is not limited to particular assets, nor is it limited to a particular time frame.

What should I do if I receive an application to vary my confiscation order?

Where the prosecution considers it appropriate to make the application, it will first write to the individual concerned and remind them of the details of the confiscation order, along with a 'Consent Order' inviting the individual to agree that their confiscation order should be varied.

Legal advice and representation should be sought at the first opportunity. There are often grounds to contest the application and detailed and expert consideration should be given to the prosecutor's application.

How can I oppose the application?

The fact that a confiscation order that may have been met by an individual can later be revisited, at any time, and in relation to any asset, is deemed by many as unfair and contrary to prospects of rehabilitation.

As in original confiscation proceedings, the burden falls on the defendant to disprove the prosecution's assertions regarding the 'new-found wealth.’ Whilst the legislation is draconian, there is scope to oppose the applications and therefore potential hope for defendants who may be stripped once again of their assets

Cases concerning applications under section 22 of POCA have given consideration to assets that have been accumulated by 'hard work and legitimate enterprise'. In the case of R v Padda 2014 the court found that a judge should exercise discretion where a defendant had formed a legitimate business and accumulated funds.

It is arguable that greater scope was given for a section 22 application to be challenged following the recent case of R v Mundy 2018, in which the court refused to permit a confiscation order to be revisited. It was held that the court should take into account all relevant circumstances when deciding the issue. This might include the amount that is outstanding, the length of time since the original order and the impact that further payment would have. This may provide optimism to those facing a section 22 application, albeit the court found that such factors must be balanced against legislative policy of maximizing recovery from crime.