Introduction
Confiscation under the Proceeds of Crime Act 2002 (“POCA”) is often imagined as a single, punishing number: the figure the prosecution says a defendant gained, handed down as the sum they must pay. That picture is intuitive, and it is wrong. Benefit is a ceiling, not a bill. What a defendant is actually ordered to pay is the recoverable amount, and where the realisable assets are worth less than the benefit, the order is capped at what can genuinely be realised.
The real contest in many cases is therefore not what the defendant gained, but what can lawfully be taken from them.
This article follows one matter through that distinction. The prosecution opened with a benefit figure a fraction under £100,000 and a realisable-assets figure north of £200,000. By the end, both had collapsed the benefit through expert evidence, and the available amount through a single, easily-missed feature of a property: it was not, in any meaningful sense, hers to sell. The details below are anonymised.
What the Prosecution Asked For
The prosecutor’s statement of information under section 16² set the benefit at £97,025.39. It was built from a drugs valuation of £35,200, £14,871 of criminal property, and a little over £32,000 of unexplained bank transfers, each grossed up for inflation under the change-in-the-value-of-money provisions.
The available amount was put at £201,925: a bank balance of £2,870 and, dominating everything, £199,055 of supposed equity in a residential property.
On those figures, the order would simply have followed the benefit. The realisable assets comfortably exceeded it, so the full £97,025.39 would have been recoverable in cash. That was the position the defence had to move and the interesting thing is where it moved.
Contesting the Benefit
Benefit is evidential, not fixed. The drugs figure rested on a valuation of 88 sheets at £400 each. A defence drugs expert put the realistic wholesale range far lower between £100 and £250 a sheet and the financial investigator, to her credit, accepted it and adopted the mean. That single revision took £19,800 off the drugs figure and, with the reduced inflation uplift that followed, brought the benefit down to £74,537.90.³
The bank transfers were the next front. Where a defendant can explain apparently unattributed credits here, sums connected to the purchase and conveyancing of property, and legitimate third-party transfers the statutory assumptions that treat such credits as criminal benefit can be displaced.⁴ On the explanations advanced, the benefit fell further still, into the region of £31,000 to £39,000 depending on which credits were accepted.
The headline had already more than halved. But benefit was never going to be the operative number.
The Little Point on the House
The property carried almost the whole of the prosecution’s realisable-assets case. It was described as worth £220,000, against a £20,945 mortgage, producing on the prosecution’s arithmetic roughly £199,000 of equity.
The difficulty was that the defendant did not own the house in the way that figure assumed. It was held on a shared-ownership basis. Her interest was a 25% share; the majority owner was a housing association. The equity that mattered for confiscation was her share, not the whole and even that share could not simply be turned into cash. Under a shared-ownership lease, the property cannot be sold over the head of the majority owner: a sale requires its co-operation, and the lease said nothing to compel it. A quick-sale valuation put the whole property at £180,000–£190,000, below the prosecution’s figure, and the funds that had bought the share came from an inheritance rather than from crime.
Reduced to the defendant’s actual, realisable interest, the property was worth a fraction of £199,055 and arguably nothing that could be realised at all without the majority owner’s agreement. Strip it out, and the available amount fell back towards the only asset that could truly be touched: a bank balance of £1,634.50.
Why the Available Amount Governs
This is where the ceiling-and-bill distinction bites. Section 7 requires the court to fix the recoverable amount at the defendant’s benefit unless the defendant shows that the available amount is less, in which case the order is capped at the available amount (or a nominal amount where it is nil).⁵ A benefit of £74,537.90 is immaterial if the realisable assets come to a four-figure sum. The order can be no larger than what the defendant actually has.
That is also why the shared-ownership point could not be parked as a detail for the enforcement stage. Where a third party may hold an interest in property, the extent of the defendant’s interest can be determined at the confiscation stage itself,⁶ and the realisability of a co-owned asset — whether it can in fact be sold, and for how much goes directly to the available amount the court must find. A prosecution figure that treats a 25% share in an effectively unsaleable property as £199,000 of ready equity is not a small overstatement. It is the difference between a five-figure order and a nominal one.
So when, later in the case, the available amount was asserted at £45,050 with no explanation of how the property had been valued, or how a forced sale over a housing association’s objection was supposed to occur, that was the number to test not the benefit.
Conclusion
The instinct in a confiscation case is to argue about what the defendant is said to have gained. Sometimes that is where the work is. More often, as here, the decisive move is quieter: reading the available amount with the same scepticism as the benefit, and asking not “what is this asset worth?” but “what, in law and in fact, can actually be realised from it?”
A single feature of the property a minority share, and a majority owner whose consent no one can compel did more to shape this order than any argument about drugs or bank credits. Benefit is the ceiling. The available amount is the bill. In practice, it is the second number, and the unglamorous factual work behind it, that decides what a confiscation order is really worth.
¹ Proceeds of Crime Act 2002, ss 6–7. ² Proceeds of Crime Act 2002, s 16. ³ On the defendant’s right to respond to the statement of information, see POCA 2002, s 17. ⁴ Proceeds of Crime Act 2002, s 10 (assumptions in criminal-lifestyle cases); the court must not make an assumption shown to be incorrect: s 10(6). ⁵ Proceeds of Crime Act 2002, s 7(2); “available amount” is defined at s 9. ⁶ Proceeds of Crime Act 2002, s 10A (determination of the extent of the defendant’s interest in property), inserted by the Serious Crime Act 2015.
Written by Georgina Davies, who works at POCA Solicitors. She holds an LLB degree and is a Bar student at the University of Law, Birmingham.