Introduction
The enforcement of confiscation orders under the Proceeds of Crime Act 2002 (“POCA”) is often described as rigid, mechanical, and unforgiving. That description is broadly accurate, but it obscures a deeper reality: once default custody is activated, POCA enforcement becomes administrative, arithmetical, and fragmentary across institutions.
This article examines POCA enforcement in practice through a recent enforcement case in which a defendant was released from default custody on Christmas Eve following part-payment of a confiscation order. It then considers a further question arising from the same matter: whether imprisonment can lawfully be used to enforce interest alone once the principal sum has been paid.
From Confiscation Order to Default Custody
The case concerned a Crown Court confiscation order. An initial time to pay of three months was granted and subsequently extended to six months pursuant to section 11 POCA. Despite that extension, the order was not satisfied within time, and enforcement proceedings were commenced.
An application to adjourn enforcement on the basis that payments were being made was refused. This was legally orthodox. Under POCA, once the time to pay has expired, the court has no power to approve a payment plan. Any such arrangement is a matter for the enforcing magistrates’ court only once the default sentence is being served, often as part of an application for release.¹
The default sentence was accordingly triggered and the defendant was committed to custody.
When Liberty Becomes a Calculation
Once default custody begins, enforcement moves out of the courtroom. Responsibility is divided between HMCTS, which tracks the financial position of the confiscation order, and the prison, which calculates custody and release. No single institution controls both.
At this stage, release is no longer a judicial outcome. It becomes an administrative function of payment. Part-payment reduces the custodial term proportionately under section 79(2) of the Magistrates’ Courts Act 1980 as applied to confiscation orders.²
Two features of this phase are critical. First, the figure required for release changes daily. Secondly, interest continues to accrue during custody. The difference between remaining in prison and release before Christmas was therefore not a matter of advocacy, but of arithmetic.
Christmas Eve as an Administrative Outcome
The family wished to secure the defendant’s release before Christmas. That required working backwards from dates, custody calculations, and payment thresholds.
Payment of the required sum was made. HMCTS confirmed receipt and notified the prison. After recalculation, the adjusted actual release date was fixed as 24 December.
There was no judicial decision granting release. No compassionate discretion was exercised. The system simply processed the payment and updated the custodial calculation.
That ordinariness is the point. POCA enforcement does not mark moments. It processes them.
The Confiscation Order After Release
Release from custody does not bring POCA enforcement to an end. The confiscation order remains extant until it is satisfied in full. Where a defendant is released following part-payment, enforcement resumes in the community.
In this case, although the payment secured release, a substantial balance remained outstanding. Interest continued to accrue.
This gave rise to a further and more difficult legal question.
Interest and the Limits of Committal
After the principal sum under the confiscation order was eventually paid in full, interest remained outstanding. HMCTS treated the interest as enforceable and listed further enforcement action.
The question was whether imprisonment could lawfully be used to enforce unpaid interest alone.
Interest is plainly recoverable. Section 12(4) POCA provides that interest is to be treated as part of the amount to be recovered.³ But it does not follow that every recoverable sum may be enforced by deprivation of liberty.
Default imprisonment is coercive rather than punitive. Its purpose is to compel payment of criminal benefit. Once the principal sum has been paid, that coercive objective has been achieved.
The Supreme Court’s reasoning in R (Gibson) v Secretary of State for Justice supports this analysis.⁴ The Court held that default custody is fixed at the moment the Crown Court makes the confiscation order and that penal legislation must be construed strictly, “particularly where the penalty involves deprivation of liberty.” Interest does not retrospectively expand custodial exposure.
Against that background, imprisonment for interest alone is at least open to serious question. While HMCTS’s position is that interest forms part of the ‘amount payable’ and is therefore enforceable by all means, this arguably conflates recoverability with enforceability by committal and stretches the coercive rationale of the default sentence beyond its logical limit.
Conclusion
This case demonstrates how POCA enforcement operates once default custody begins: fragmented, administrative, and driven by calculation rather than discretion. It also exposes a critical flaw in the enforcement logic where interest alone remains outstanding.
In practice, only a POCA specialist can reliably get someone out of enforcement custody. It’s not a rule, but the system’s design makes it so. Release depends on a hidden calculation split between HMCTS and the prison, with no single contact or guide. A missed step—a payment to the wrong account, a delay in notification—means more time inside. What looks like simple arithmetic is, in fact, a specialist skill. Liberty becomes a matter of hiring the right expertise.
Sometimes, the most important POCA questions only emerge after a client has been released — even, as here, on Christmas Eve.
Proceeds of Crime Act 2002, ss 22–24.
Magistrates’ Courts Act 1980, s 79(2); Powers of Criminal Courts (Sentencing) Act 2000, ss 139–140.
Proceeds of Crime Act 2002, s 12(4).
R (Gibson) v Secretary of State for Justice [2018] UKSC 2
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.