What Are Confiscation Proceedings?

Confiscation proceedings are a way for prosecutors to deprive people convicted of an offence of any benefit they may have received from the offence (sometimes called ‘proceeds of crime’). A confiscation order will be made, requiring the convicted person to pay to the state the amount that it is believed they have benefited from the offence for which they have been convicted.

Confiscation proceedings can be very complicated, especially as the amount that a person has benefited from an offence is often hard to determine. People convicted of an offence can often find themselves being required to pay an amount they feel is unjustified and that they may struggle to afford. Understanding how confiscation proceedings work and what your rights are following a conviction is essential.

Here, we discuss how confiscation orders work, what happens if you can’t pay, your right to dispute a confiscation order, when the order will be spent, how long it lasts and why speaking to a solicitor is vitally important.

While we hope this information is useful, please note, it should not be taken as legal advice. If you need legal support with confiscation proceedings, then please get in touch and our team can advise you.

How does a confiscation order work?

When someone is convicted of certain offences such as fraud, money laundering, theft or largescale drugs offences (among others), the prosecution can apply to a court for a confiscation order under the Proceeds of Crime Act (PoCA). An application can also potentially be made before a conviction to prevent assets from being disposed of.

The prosecution will need to provide evidence to the court of how much the defendant is alleged to have benefited from criminal activity or a criminal lifestyle. They will also need to provide an assessment of how much it is believed the defendant can realistically be expected to repay (the ‘recoverable amount’). The prosecution will, therefore, need to carry out a confiscation order investigation to determine these amounts.

The court will hold a confiscation hearing to consider the prosecution’s evidence and any evidence from the defence disputing the prosecution’s assessment. The burden of proof lies with the defendant to prove any of the recoverable amount is not the proceeds of crime.

Confiscation order cases can be highly contentious, with the amounts involved often very hard to assess, so having the right criminal defence team can make a huge difference to any amount you are required to repay.

We have had cases where the CPS or HMRC have sought hundreds of thousands of pounds but this has been reduced to little or nothing recovered against our clients.

The court will then issue a confiscation order under the Proceeds of Crime Act setting out how much the defendant is required to pay and how long they have to do this (typically three months from the date the order is issued).

Can you dispute a confiscation order?

Yes, it is possible to dispute both the assumed criminal benefit and the recoverable amount set out in a confiscation order, however, you will need strong evidence to support why you believe the figures given in the order are wrong.

Where you dispute that you benefited from crime or the level of benefit you received, you would typically need to either show that you did not have access to the level of funds or lifestyle that is being alleged or that these were funded by legitimate means.

Where you dispute the recoverable benefit, this will typically rely on showing that your assets are worth less than the prosecution is suggesting or that they are including assets that do not belong to you.

Disputing a confiscation order is no easy task, so seeking specialist legal advice as soon as possible is incredibly important.

What happens if you can't pay a confiscation order?

If you cannot pay a confiscation order within the initial three months allowed, then it may be possible to apply for an extension of another three months, although there is no guarantee this will be granted.

Under certain circumstances it may be possible to apply to the court where the order was made to have it amended if there is property sold in an effort to cover the confiscation order that is of a lesser value. You will need legal advice in relation to this.

If you still cannot pay the amount without good reason, then the court may impose part or all of the default period set at the time the order was made.

How long does a confiscation order last?

There is no time limit for how long a confiscation order lasts. Once the order is made, the convicted person will normally have three months to make payment of the recoverable amount, although in some cases this might be extended to six months.

If the subject of the order does not repay the full amount, then, as well as potentially being given a prison sentence for non-payment, they can also still be required to pay the outstanding amount.

It is also worth noting that, if the recoverable amount has been deemed to be less than the assumed benefit the subject of a confiscation order received from crime, the recoverable amount can be reassessed in future. For example, if the assumed benefit was £500,000 and the recoverable amount is determined to be £250,000 at the time the order is granted, then if the subject of the order later comes into additional funds, the recoverable amount could be increased, requiring the subject to pay more.

When is a confiscation order spent?

A confiscation order will last until the amount specified is paid in full or the court discharges the order.

Credit for guilty plea

In short, where a guilty plea is indicated at the first stage of proceedings, you could receive a reduction from 1/3 of penalty.

More information regarding the potential outcomes for indicating a guilty plea can be found here.

Should I speak to a solicitor about confiscation proceedings?

A confiscation order is likely to have a very serious impact on your financial situation and that of your loved ones. For this reason, getting expert legal advice is essential. An experienced criminal defence solicitor can advise on whether there are grounds to contest the order and have it set aside or the amount owed reduced.

It is highly recommended to work with a solicitor who has specific experience with confiscation proceedings. These are complex matters that many criminal defence solicitors will not handle on a regular basis, so choosing a legal team with a deep understanding of these matters can ensure that you receive the very best confiscation order advice.

At JD Spicer Zeb, our expert criminal defence solicitors have more than 45 years of specialist criminal defence expertise and are Law Society accredited in Criminal Litigation. This means we are ideally placed to support you through all stages of dealing with confiscation proceedings.

Related offences

Please note that our expert solicitors also provide advice and support with various related offences, including:

• Serious fraud
• Robbery
• Drugs offences

Fees and funding

We are transparent on costs at all times, no matter your circumstances.

If you need to attend court, legal aid public funding will be available in some cases, based on the seriousness of the case justifying the grant of public funding.

For clients who do not qualify for legal aid public funding, the alternative option will be to fund their case privately.

To find out more about the way we handle fees (both legal aid public funding and private fees), please use the links provided below:

• Our Fees – Crime Cases
• Do I Qualify for Criminal Legal Aid?
• Bespoke Crime Private Fee Service
• Will Your Private Legal Costs Increase?

Speak to our criminal lawyers today

If you are due to attend the police station in relation to a confiscation order, or require any urgent specialist advice, immediate representation, please do not hesitate to get in touch.

You can contact our specialist criminal defence lawyers in London, Birmingham and Manchester by telephone on:

• Brent & Camden London Office: 0207 624 7771
• Manchester Office: 0161 835 1638
• Birmingham Office: 0121 614 3333
• City of London: 0207 624 7771 (our senior Solicitors and Partners can meet by appointment in the City)

Or email: solicitors@jdspicer.co.uk

Alternatively, you can fill out our quick online enquiry form, and we will get back to you quickly.

24/7 legal representation for confiscation proceedings

Please get in touch for a free consultation with one of our expert criminal defence solicitors, as well as immediate representation and advice for responding to a confiscation order.

We are available to represent clients all over England and Wales at any time, so please contact our Emergency Number at 07836 577 556.