Fighting a Prosecution Confiscation Calculation Under POCA

How Can I Challenge the Prosecution’s Confiscation Calculation Under POCA?

The prosecution’s confiscation statement sets out what it believes you obtained through criminal conduct and the assets available to satisfy an order.

It is the prosecution’s calculation, not a final court finding. You can challenge incorrect amounts, disputed transactions and any assumptions used to include money unrelated to the offence.

For example, the prosecution may have counted legitimate business income, transfers between your own accounts or money received from family members as criminal benefit.

Your solicitor can prepare a formal response identifying the disputed figures and the evidence supporting your account.

Do not ignore the prosecution’s statement. The court sets deadlines for responding, and failing to address particular allegations may mean they are treated as accepted.

What Are Criminal Lifestyle Assumptions Under POCA and Can They Be Rebutted?

POCA allows the court to make certain assumptions about a defendant’s finances where the statutory criminal lifestyle test is met. This can result in a benefit calculation much higher than the value directly connected to the fraud conviction.

POCA allows the court to make certain assumptions about a defendant’s finances where the statutory criminal lifestyle test is met. This can result in a benefit calculation much higher than the value directly connected to the fraud conviction.

Does every fraud conviction trigger criminal lifestyle assumptions?

No. A fraud conviction does not automatically mean the criminal lifestyle rules apply. The court must first establish whether the conviction meets one of the statutory conditions.

These include certain listed offences, conduct forming part of a qualifying course of criminal activity, or offending carried out over a sufficient period that meets the legal requirements. If your conviction does not meet the criminal lifestyle test, your solicitor can challenge the prosecution’s attempt to apply the assumptions.

In that situation, the confiscation assessment generally focuses on benefit from the particular criminal conduct rather than wider assumed criminal activity.

What do the six-year assumptions mean for my bank accounts?

Where criminal lifestyle is established, POCA requires the court to make assumptions about certain property and spending, unless a statutory exception applies.

These can include money received during a period generally looking back six years before the criminal proceedings began, property held after conviction and expenditure during the relevant period.

The assumptions may treat these amounts as connected to criminal conduct unless they are successfully challenged.

For example, if £40,000 entered your bank account from a legitimate property sale, that money could appear in the prosecution’s calculation unless its source is properly addressed.

However, the assumptions are not limited to bank deposits. POCA also contains rules concerning property held after conviction and the valuation of property interests.

Can I prove that the assumptions are wrong?

Yes. You can challenge an assumption by showing that it is incorrect or that applying it would create a serious risk of injustice. The court considers the evidence on the balance of probabilities.

Bank statements, payslips, business records, loan agreements and documents relating to gifts or inheritance may help establish a legitimate source. For example, if a deposit came from an inheritance, the relevant estate documents and bank records may support your explanation.

Where documents are unavailable, your solicitor can explain the circumstances and help present other credible evidence.

The court must consider the evidence and the reasons why particular records may be missing.

Does a £900,000 Benefit Figure Mean I Have to Pay £900,000?

Not necessarily. POCA distinguishes between the amount you benefited from criminal conduct and the assets available to satisfy a confiscation order.

These are separate calculations.

What is the benefit figure?

The benefit figure represents the value of property obtained through criminal conduct. It is not necessarily the profit you personally kept.

For example, where someone obtained £100,000 through fraud but retained only £20,000, the benefit calculation may still reflect the larger amount. Where criminal lifestyle assumptions apply, the calculation may also include other property and expenditure treated as connected to criminal conduct.

However, the court must apply the legal rules correctly, including any relevant limits on double counting and disproportionate recovery.

What is the available amount?

The available amount is based on the value of assets that can be used to satisfy the order. This can include legitimately acquired assets, such as savings or an interest in property, together with the value of certain gifts made to others.

Relevant priority obligations and other recognised interests must also be considered. If the available amount is lower than the benefit figure, you can present evidence of that difference.

For example, if the court determines a benefit of £900,000 but accepts that your available amount is £120,000, the confiscation order may be made for the lower amount, subject to the applicable legal rules.

The prosecution may dispute your assessment of available assets or suggest that other assets have not been disclosed. Those allegations can also be challenged.

What Evidence Can I Use to Challenge Bank Deposits and Transfers?

The most useful starting point is a complete review of the transactions included in the prosecution’s calculation. Some deposits may have legitimate explanations. Others may have been counted more than once.

Can transfers between my own accounts be counted twice?

The prosecution’s schedule may include money transferred between accounts as separate receipts. For example, £15,000 moved from a business account into a personal account could appear twice if the investigator has not identified the transfer correctly. Whether the figures have been wrongly counted depends on the underlying transactions and the legal basis of the calculation.

Your solicitor or forensic accountant can compare the accounts and identify any duplication.

What documents should I gather?

Useful records include:

• Bank statements covering the relevant period.
• Business accounts, invoices and tax returns.
• Payslips and employment records.
• Loan agreements and repayment records.
• Gift, inheritance or property-sale documents.
• Correspondence explaining unusual transactions.

Each disputed deposit should be matched to its source wherever possible.

A clear transaction schedule showing the prosecution’s figure, your explanation and the supporting evidence can help identify which amounts should be reconsidered.

Can a forensic accountant help reduce the confiscation figure?

A forensic accountant experienced in POCA proceedings can examine the prosecution’s calculation and identify potential errors. This may include duplicated transactions, legitimate income treated as criminal benefit or mistakes in valuing assets.

For example, where several business and personal accounts are involved, an accountant can trace transfers and explain how the money moved between them. They may prepare an expert report supporting a challenge to particular figures.

However, instructing an expert does not guarantee that the benefit amount will be reduced. The court considers the report alongside the other evidence.

Expert assistance also has costs. If you receive legal aid, your solicitor can advise whether funding approval is needed before an expert is instructed.

Could Confiscation Proceedings Affect My Family Home?

Yes. Your interest in a family home may count toward the available amount, even if you bought the property with legitimate money. However, the prosecution cannot simply assume that you own the entire property where another person has a genuine legal or beneficial interest.

For example, if your spouse jointly owns the property, their share may need to be established when determining your available assets. Mortgage records, ownership documents and evidence of financial contributions can be relevant.

A spouse or other co-owner may be able to participate in proceedings to protect their interest. The position can be more complicated where property has been transferred as a gift or where ownership is disputed.

Anyone whose property rights may be affected should obtain separate legal advice where appropriate.

What Happens If I Cannot Pay the Confiscation Order?

A confiscation order is normally payable immediately.

If you cannot pay the full amount when the order is made, the court may allow up to three months for payment. An extension may be available in qualifying circumstances, subject to a maximum total period of six months.

If the order is not paid, enforcement action may follow. This can include steps to recover assets and, in some circumstances, activation of a default prison sentence.

Serving a default prison sentence does not cancel the confiscation debt. If your available assets are genuinely insufficient to pay an existing order, an application to reduce the outstanding amount may be possible under POCA.

However, the court will examine your financial position and the reasons why the money cannot be recovered.

You should obtain advice before the payment deadline rather than allowing the order to fall into arrears.

How Long Do I Have to Challenge the Prosecution’s POCA Statement?

The deadline depends on the directions made by the Crown Court in your case. There is no single response period that applies to every confiscation proceeding.

The prosecution serves its statement, and the court may require you to respond to specific allegations within a set period. Your response should identify which facts and figures are accepted, which are disputed and the evidence supporting those disputes.

Failing to respond properly can have serious consequences. The court may treat certain unchallenged allegations as accepted.

If you have received the prosecution’s statement, ask your solicitor to check the court timetable immediately.

Legal aid may be available for confiscation proceedings, depending on your circumstances and the applicable funding arrangements.

How Can a POCA Confiscation Solicitor Help Me Challenge the £900,000 Figure?

A solicitor experienced in POCA confiscation can examine how the prosecution arrived at the £900,000 figure and identify which parts of the calculation may be challenged.

This includes considering whether the criminal lifestyle test applies, whether the statutory assumptions have been used correctly and whether particular receipts or assets have been wrongly included.

A solicitor can also:

• Prepare your response to the prosecution’s confiscation statement.
• Review banking and business records supporting legitimate transactions.
• Instruct a forensic accountant where appropriate.
• Challenge the prosecution’s assessment of available assets.
• Address disputed ownership of family property.
• Represent you at the Crown Court confiscation hearing.

The purpose is to ensure that the court decides the benefit and recoverable amount using accurate evidence and the correct legal rules. If the prosecution has calculated your benefit at £900,000 and you believe the figure is wrong, seek advice before the response deadline expires.

Ashmans Solicitors can advise on POCA confiscation proceedings, disputed benefit calculations and criminal lifestyle assumptions.

Find out more about our POCA confiscation service