Proceeds of Crime Act 2002, Part 5: Civil Recovery or Criminal Recovery?

Part 5 of the Proceeds of Crime Act 2002 (or POCA 2002) enables enforcement agencies to recover property which has been obtained through unlawful conduct or organised crime, such as money laundering. This right can be exercised by the National Crime Agency (NCA) or another authority whether or not any proceedings have been brought in relation to a criminal offence.

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Section 22 Proceeds of Crime Act: A Second Bite of the Cherry

Section 22 of the Proceeds of Crime Act refers to the revisitation of earlier confiscation orders that were made at a time when the full amount originally believed to have been illegally obtained by a defendant was not available for recovery, and can currently be called upon by the prosecution at any time in order to confiscate the remaining sum.

If a defendant has come into an inheritance, won money or property, received any form of compensation, accumulated savings or purchased goods or property, Section 22 permits these finances or assets to be confiscated by the law until the total value of the original benefit figure has been covered.

Is Section 22 of the Proceeds of Crime Act Unfair?

There are a number of potential problems regarding the justness and morality of this particular piece of legislation. Firstly, if the defendant is not the only individual who has invested in a property, for example, and that property is duly confiscated by a law enforcement body citing Section 22 of the Proceeds of Crime Act 2002, any third party involved will potentially be required to forfeit their portion of the investment despite being innocent of any crime.

Secondly comes the matter of rehabilitation. According to legislation passed back in 1974, the UK legal system should be thoroughly engaged in the rehabilitation of offenders – yet there is very little possibility of this being achieved when those who have committed an offence in the past are liable to have any finances, property or assets seized from them at any given time. The possibility of purchasing a home or setting up a business becomes far more difficult, potentially forcing the individual in question to seek out “under the radar” or unlawful ways to make a living once again and thus creating a vicious circle of financial crime.

If a defendant owns property already, and that property increases in value over a number of years, there is always the possibility of Section 22 of the Proceeds of Crime Act kicking in and any amount of interest that has accumulated being seized, trapping the individual in place.

Pensions, too, are potentially no longer safe. From 2015 onwards, pension pots have been accessible in full to the people set up to benefit from them. However, because of this they have also become “fair game” under Section 22. Stripping an elderly individual of their financial support could be argued to be very unfair, no matter their criminal history.

As of the present time, it is up to the court to determine when sufficient time has passed since the original offence to confirm that Section 22 can no longer be invoked. Prosecutors can also argue that significant inflation has taken place since the original confiscation order was made, meaning that the law can confiscate more money or assets than was originally stated.

How Can I Protect Myself from the Application of Section 22?

The best approach to take in order to steer clear of the threat of Section 22 is to ensure that there is a clear and transparent paper trail for any and all sums of money, assets and properties that may have come into your possession, for example by way of inheritance, interest in property or accumulating savings.

You should seriously consider engaging the services of an experienced confiscation specialist to help you to protect yourself from incorrect use or misuse of this legislation.

Can You Appeal a POCA Section 22 Judgement or Confiscation? 

It is possible to appeal against a decision in a court of appeals to confiscate your goods, property, finances and assets under Section 22 of the POCA 2002, although many of the specifics of this legislation still rely heavily on the court’s discretion.

One way of successfully arguing against the confiscation of property, assets or monies is to engage a confiscation lawyer to study and contest the “trigger condition” stated by the prosecution. This term refers to the occurence or change in conditions that has prompted the prosecution to revisit the confiscating procedures in question. If, for example, the prosecution has argued that your available finances have significantly increased since the original confiscation took place, and you and your legal advisor are able to conclusively prove that they have not, or there are third party interests that have not been taken into consideration during your original confiscation proceedings or your original solicitor failed to advise you adequately in respect of the confiscation proceedings. All of these scenarios present potential grounds to appeal the prosecution’s decision to pursue asset seizure under Section 22.

Another approach is to argue against fairness of these proceedings. If it can be argued that the passage of time since the original confiscation is excessive, or proven that assets that you now possess are not under your sole name and that seizing them would negatively affect an innocent third party, your appeal may be successful.

If you have been affected by Section 22 of the Proceeds of Crime Act, DBT & Partners can help. In these cases, it’s vital to seek profess