HOW DOES ‘POCA’ APPLY IN THE UK

- legislation.gov.uk?

1. The Proceeds of Crime Act 2002 (‘POCA’) sets out the legislative scheme for the recovery of criminal assets with criminal confiscation being the most commonly used power. Confiscation occurs after a conviction has taken place. Other means of recovering the proceeds of crime, which do not require a conviction are provided for in the Act, namely civil recovery, cash seizure and taxation powers. The aim of the asset recovery schemes in POCA is to deny criminals the use of their assets, recover the proceeds of crime and disrupt and deter criminality.

2. The Act also provides for a number of investigative powers, such as search and seizure powers, and powers to apply for production orders and disclosure orders, and allows for the ‘restraint’ or ‘freezing’ of assets to prevent dissipation of assets prior to a confiscation order being made.

3. The Crown court must consider making a confiscation order against a defendant under Part 2 POCA if: a) The defendant is convicted of an offence or offences in the Crown court, or has been committed to the Crown court for sentence or to be considered for a confiscation order. b) If the prosecutor requests that the court consider

making a confiscation order, or the court believes that it is appropriate to consider making a confiscation order.

4. The Crown court, when it considers making a confiscation order against a defendant, must determine whether the defendant has a ‘criminal lifestyle’. If so, the court must determine whether the defendant benefited from his ‘general criminal conduct’. General criminal conduct is conduct at any time that constitutes an offence in England and Wales (whether or not it occurred in England and Wales). The court, when determining these matters, must do so on the balance of probabilities, not to the criminal standard of proof.

5. If the court decides the defendant has a criminal lifestyle, certain assumptions may be made. In particular, the court will assume all property.

6. If the court determines that the defendant does not have a criminal lifestyle, it must decide whether he has benefited from his or her ‘particular criminal conduct’. Particular criminal conduct means conduct which constitutes the offence or offences for which the defendant has just been convicted, or conduct which constitutes offences which the court will be taking into consideration in deciding his or her sentence for the offence or offences of which the defendant has just been convicted.