What Is the Recoverable Amount in POCA Cases?
Understanding the Recoverable Amount in POCA Confiscation Proceedings
In confiscation proceedings under the Proceeds of Crime Act 2002 (POCA), two figures are often confused, the criminal benefit and the recoverable amount. Understanding the difference between these is essential for legal professionals and anyone involved in assessing a defendant’s financial position following conviction.
What is the Criminal Benefit?
The criminal benefit is the total value the court determines the defendant has obtained from criminal conduct. This might relate solely to the offences for which the defendant has been convicted, or it might extend more widely if the defendant is deemed to have a criminal lifestyle. In the latter case, the court can apply statutory assumptions and assess benefit based on unexplained income, property transfers and spending during the relevant period.
This benefit figure is often significant, particularly in lifestyle cases.
What is the Recoverable Amount?
The recoverable amount is the sum the defendant is actually ordered to pay. It is defined in POCA as the lesser of two values:
The benefit the defendant is found to have obtained from criminal conduct
The amount available to the defendant at the time of the order
This distinction is key. The court does not simply order the full benefit to be paid if the defendant does not have the means to do so.
What Counts as the Available Amount?
The available amount refers to the assets the defendant currently holds or is deemed to hold. It can include:
Bank balances and cash
Equity in property
Vehicles, valuables and other personal assets
Business interests and shares
Tainted gifts, which are significant transfers made after the relevant day, especially in criminal lifestyle cases
Assets that may have been transferred to others or are suspected to be hidden
Hidden assets are a common feature in POCA cases. Where the prosecution believes the defendant has concealed assets, they may seek to rely on inferences or apply lifestyle assumptions. This can increase the assessed available amount beyond what is obvious from disclosed financial records. Disputes over whether assets are truly available or hidden are often central to confiscation proceedings.
Why the Figures Rarely Match
In the majority of cases, the recoverable amount is lower than the benefit figure. There are several reasons for this:
The proceeds may have been spent on living expenses, travel or gambling
Property may have been lost, devalued or dissipated
Assets may be outside the jurisdiction or legally inaccessible
Money may have been gifted or transferred before restraint was imposed
There may be genuine uncertainty or dispute over what assets the defendant still controls
The purpose of the recoverable amount is to reflect what can realistically be recovered at the time of sentencing, not what the defendant is thought to have benefited from historically.
What Happens if the Defendant Does Not Pay?
The court allows a payment period, usually three months and extendable to six. If payment is not made within that time, a default sentence of imprisonment may be imposed. This is in addition to the original sentence for the offence. Serving a default sentence does not cancel the debt. Interest continues to accrue, and the outstanding amount remains enforceable.
Can the Recoverable Amount Change Later?
Yes. Under section 22 of POCA, the prosecution can return to court if the defendant acquires new assets in the future. This allows the court to revisit the recoverable amount and increase it, up to the full benefit figure originally determined. For example, if the defendant inherits money or sells a previously unavailable property, the Crown can seek to recover more at that stage.
Final Thoughts
The recoverable amount is not simply a percentage of the criminal benefit. It is a separate, carefully assessed figure that reflects what the defendant can actually pay at the time of the order. Forensic accountancy plays a vital role in ensuring that this figure is accurate, fair and based on real financial evidence rather than assumption.
