Proposed Changes to Section 7 POCA
Proposed Changes to Section 7 POCA: A New Approach to Calculating Benefit?
The Crime and Policing Act 2026 contains several proposed amendments to the confiscation regime under the Proceeds of Crime Act 2002 (POCA). Whilst these changes have not yet been brought into force, one of the most significant reforms relates to Section 7, which governs the calculation of the recoverable amount.
If commenced, the amendments would introduce important changes to the way a defendant's benefit is calculated and could have significant practical implications for prosecutors, defence practitioners and forensic accountants alike.
The Current Position
At present, Section 7 provides that the recoverable amount is generally equal to the defendant's benefit from criminal conduct, unless the defendant can show that the available amount is lower.
Section 7(4) already excludes certain categories of property from the benefit calculation, including property that has been recovered or forfeited through specified POCA recovery mechanisms.
The proposed reforms would considerably expand those exclusions.
A Broader List of Property to Be Ignored
If brought into force, Section 7(4) would require the court to disregard several additional categories of property when calculating the defendant's benefit.
These would include:
property restored to a victim;
property handed over to an appropriate officer;
property that has been seized under statutory or common law powers and has not subsequently been released;
compensation paid by the defendant to victims in respect of the criminal conduct; and
certain additional categories of property already subject to restraint or recovery proceedings.
Taken together, these proposals represent a significant expansion of the property that would no longer contribute towards the defendant's benefit.
Seized Property
Perhaps the most significant proposal concerns seized property.
Under the current legislation, Section 7(4) does not expressly exclude property simply because it has been seized.
The proposed amendment would change that.
If commenced, property seized under a warrant or other lawful power that has not subsequently been released would be ignored when calculating benefit.
This could have important consequences in confiscation proceedings involving seized cash, jewellery, watches, vehicles or other valuable assets.
Restoring Property to Victims
The proposals would also prevent property that has already been restored to a victim from contributing towards the defendant's benefit.
Similarly, compensation already paid by a defendant to compensate victims for their loss would also be disregarded.
These changes appear intended to prevent the same value from being reflected twice in confiscation proceedings where the victim has already received restitution.
A More Flexible Test for the Available Amount
The proposed amendments would also alter the wording of Section 7(2).
Currently, the legislation requires the defendant to "show" that the available amount is less than the benefit.
The proposed wording would instead require the defendant to "prove or the court is otherwise satisfied" that the available amount is lower.
Whilst this may appear to be a modest drafting amendment, it could provide the court with greater flexibility where the evidence establishes that the available amount is less than the benefit, even if the defendant has not formally discharged the burden in the traditional sense.
Reconsideration Where Seized Property Is Released
The proposals also contain an important consequential amendment to Section 21 POCA.
If property has been excluded from the benefit calculation because it remained seized, but is later released to the defendant, the prosecution would be able to apply for the defendant's benefit to be reconsidered.
This ensures that excluding seized property at the initial confiscation hearing does not permanently prevent the court from considering that property if it later becomes available to the defendant.
The proposals therefore create a coherent mechanism that accommodates changes in the status of seized assets after the confiscation order has been made.
Practical Implications
If these reforms are commenced, practitioners reviewing a prosecution's Section 16 statement may need to consider several additional questions.
For example:
Has any property already been restored to a victim?
Has any compensation already been paid?
Has any property been handed over to an appropriate officer?
Has any property been seized and not subsequently released?
Should any of that property continue to form part of the prosecution's benefit calculation?
These are questions that currently receive relatively little attention but could become an important part of reviewing confiscation calculations.
Conclusion
Although these amendments are not yet in force, they represent one of the most significant proposed changes to the calculation of benefit since the Proceeds of Crime Act 2002 came into effect.
If commenced, they would require practitioners to look more closely at property that has already been recovered, restored, compensated for or seized before accepting the prosecution's assessment of benefit.
Solicitors, prosecutors and forensic accountants involved in confiscation proceedings should therefore keep a close eye on the commencement of these provisions, as they have the potential to change the way Section 16 statements are reviewed and challenged in practice.
