Last reviewed: September 2026
What is POCA?
The Proceeds of Crime Act 2002 creates a number of different regimes. In criminal cases, confiscation proceedings can follow conviction and are designed to recover the proceeds of criminal conduct. POCA also contains powers for restraint, cash seizure and forfeiture, account freezing and forfeiture, civil recovery and other forms of asset recovery. These procedures are related but they are not interchangeable.
The first task is therefore to identify exactly which POCA power is being used, by whom, in which court and at what stage. A confiscation order after conviction is a different process from an account freezing order obtained without a criminal conviction. A restraint order is intended to preserve assets; it does not itself determine the final confiscation figure.
Confiscation after conviction
In England and Wales, confiscation proceedings generally arise under Part 2 of POCA after a defendant has been convicted. The court determines the relevant benefit figure and the amount available to satisfy an order, applying the statutory framework to the facts of the case. The exercise can involve bank accounts, property, businesses, vehicles, investments, cryptocurrency, cash, transfers and assets held with or by other people.
The prosecution may serve detailed financial material and invite the court to draw conclusions from records extending beyond the immediate offence. The defence should not treat the prosecution schedule as an accounting fact. Every material figure should be traced back to its evidential source and legal basis.
Benefit and available amount
Confiscation litigation commonly distinguishes between the benefit said to have been obtained from criminal conduct and the defendant’s available amount. They answer different questions. The prosecution’s benefit case may depend on turnover, receipts, property obtained, assumptions or the scope of the offending. The available amount concerns realisable property and relevant interests at the time the order is made.
A large alleged benefit figure does not necessarily mean the defendant currently possesses that amount. Equally, a defendant cannot respond to a benefit allegation merely by saying the money is gone. The statutory exercise requires separate analysis of benefit and assets.
Criminal lifestyle allegations and statutory assumptions
In qualifying cases the prosecution may contend that the statutory criminal-lifestyle provisions apply, potentially bringing wider assumptions into the confiscation calculation. This can substantially expand the financial period and transactions under examination. The defence should identify the legal basis for the prosecution’s position and then test individual transactions with documentary evidence.
Bank credits can have many explanations: salary, transfers between a person’s own accounts, loans, sale proceeds, gifts, legitimate business receipts or returned funds. If a transaction is said to be criminal benefit, the defence should ask what evidence supports that conclusion and what records exist to establish the true source.
The importance of a financial chronology
POCA cases often become unmanageable because thousands of pages of financial material are approached account by account rather than chronologically. A reliable chronology can identify property purchases, refinancing, transfers, business events, inheritances, loans, relationship changes and other events that explain asset ownership and movement.
The chronology should connect to the documents. Land Registry records, completion statements, mortgage statements, company accounts, tax records, bank statements, loan agreements and contemporaneous correspondence can be far more persuasive than retrospective explanation alone.
Property and equity
Residential and investment property frequently forms a significant part of the available-amount dispute. The relevant questions can include legal title, beneficial ownership, mortgage balances, purchase contributions, subsequent payments, trusts, relationship property and third-party interests.
A simple Land Registry title does not always answer every beneficial-interest issue, but assertions of ownership need evidence. Purchase documents, deposits, mortgage payments, declarations of trust, separation agreements and the parties’ conduct may all be relevant.
Third-party interests
Confiscation can affect spouses, partners, relatives, companies or others who say they own an interest in property that the prosecution attributes to the defendant. Third-party interests should be identified early. The person asserting the interest may need their own independent legal advice where their position conflicts with the defendant’s.
The evidence should show how the interest arose, when it arose and how it has been treated in practice. Late, undocumented ownership claims are inherently harder to establish than interests supported by contemporaneous financial records.
Tainted gifts and transfers
Transfers to another person can become relevant under POCA even where the defendant no longer holds the asset. The legal treatment depends on timing, value and circumstances. A transfer should therefore be analysed from the underlying records: what was transferred, what consideration was given, why it happened and what documentary evidence exists.
Restraint orders
A restraint order can be sought to preserve assets so that they remain available for confiscation. Current CPS guidance confirms that restraint can be obtained from the Crown Court from the investigation stage, before conviction. The effect can be extensive, preventing dealing with specified property or property generally, depending on the terms of the order.
A restraint order should be read carefully rather than summarised from memory. The permitted living expenses, business expenses, exceptions and reporting obligations may matter. A person affected should avoid transactions that could breach the order and obtain advice before moving, selling, charging or transferring assets.
Challenging or varying restraint
The existence of a restraint order does not mean its terms can never be challenged or varied. The correct application depends on the statutory power, the terms of the order and the facts. Issues can include whether the legal test remains met, whether particular property should remain restrained, living or business expenses, third-party interests and changes in circumstances.
Applications made without notice also carry disclosure obligations on the applicant. Where the original application omitted material capable of affecting the court’s decision, that may require careful examination.
Account freezing orders
POCA also provides a civil asset-recovery route for freezing money in qualifying accounts. An account freezing order does not require a prior criminal conviction. The court considers the statutory suspicion test, and law enforcement may then pursue forfeiture of the frozen money. The evidence can include transaction patterns, source-of-funds material, links to alleged criminal conduct and explanations provided by the account holder.
A person whose account is frozen should obtain the application, order and supporting material where available and assemble source-of-funds evidence. Payroll records, contracts, invoices, tax documents, sale agreements, loan evidence and bank trails can be central. A generic statement that money is legitimate is rarely enough if the transaction history appears unusual.
Cash seizure and forfeiture
Cash may be seized and detained under POCA powers where the statutory conditions are said to be met. Forfeiture proceedings concern whether the cash is recoverable property or intended for use in unlawful conduct. The defence should identify the source, purpose, ownership and any documentary evidence supporting the explanation.
Civil recovery and non-conviction routes
Not all asset recovery depends on a criminal conviction. POCA contains civil recovery and forfeiture mechanisms operating on different legal bases. This is why an acquittal, no-further-action decision or absence of charge does not automatically answer every asset-recovery process. The particular statutory route and evidence must be analysed separately.
Section 16 and section 17 statements
In confiscation proceedings the prosecution and defence exchange formal financial positions under the statutory procedure. The prosecution statement should be analysed line by line. The defence response needs to identify what is admitted, what is disputed and why, with supporting documents. A vague denial can leave the prosecution calculation effectively unanswered.
The strongest defence statements make the financial dispute usable for the court: clear schedules, asset values, ownership positions, source documents and a reasoned alternative calculation where appropriate.
Valuation disputes
Assets have to be valued. Property, companies, shares, vehicles, jewellery, cryptocurrency and other assets may require different evidence. A prosecution estimate can be challenged where the methodology or date is wrong. Equally, a defence valuation should be credible and supported rather than selected because it produces the lowest number.
Hidden asset allegations
If the prosecution says assets have been concealed, dissipated or placed in another person’s name, the defence should identify the evidential basis for that allegation. Transfers and unexplained transactions may justify scrutiny, but the conclusion still has to be supported. Documentary reconstruction is often the most effective response.
Confiscation orders and payment
Once a confiscation order is made, compliance and payment dates matter. Failure to satisfy an order can lead to enforcement action and serious consequences. A default term does not simply replace the debt. Anyone facing difficulty meeting an order should obtain advice promptly rather than wait for enforcement proceedings.
Reconsideration and later changes
POCA contains mechanisms that can permit later reconsideration in certain circumstances, including where additional assets become available or information changes. An apparently completed confiscation case can therefore have later consequences. The terms of the original order and any subsequent application need to be read together.
POCA and the underlying criminal defence
Financial exposure should be considered before conviction where it is foreseeable. Decisions about factual basis, plea, ownership admissions and the scope of offending can affect later confiscation arguments. The criminal and financial cases should therefore be strategically consistent.
The same is true for fraud and money-laundering prosecutions. Transaction evidence used to prove the substantive offence may later be repurposed in the benefit calculation. Defence analysis should preserve the distinction between what a transaction proves about guilt and how it is characterised for POCA.
Funding and private POCA work
Funding arrangements in proceeds-of-crime proceedings can be technical and depend on the type and stage of case. Theodorous undertakes substantial private POCA work and can advise at the outset on scope and fees. Where the POCA proceedings arise from a legally aided criminal case, the public-funding position should be checked against the specific work required.
Frequently asked questions
Does a confiscation order mean the court takes everything I own?
No. The court applies the statutory confiscation framework, including benefit and available-amount concepts. The calculation depends on the facts and evidence.
Can my spouse’s share of the house be taken?
Third-party interests can be important. Ownership and beneficial interests need evidence and may require the third party to obtain independent advice.
Can the police freeze my bank account without charging me?
Account freezing orders are a civil POCA mechanism and do not necessarily depend on a criminal charge or conviction. The statutory test and evidence should be examined.
Can a restraint order be changed?
Variation or discharge may be possible depending on the legal basis and facts. Do not breach the existing order while seeking a change.
What documents should I keep?
Bank statements, property completion papers, mortgage records, company accounts, tax records, loan agreements, sale documents, inheritance evidence and records explaining significant transfers can all be important.