Section 19 POCA: When Confiscation Can Be Reopened
Reconsidering Confiscation: Section 19 POCA Explained
In some cases, the Crown Court chooses not to make a confiscation order at the time of sentencing, even where it could have. But under section 19 of the Proceeds of Crime Act 2002 (POCA), that decision isn’t always final.
This provision gives the prosecution a second chance, allowing the court to reopen confiscation proceedings in certain circumstances, often years after conviction.
When Can Section 19 POCA Be Used?
For section 19 to apply, all of the following conditions must be satisfied:
The confiscation gateway was originally open
The court could have proceeded under section 6 POCA (for example, the defendant had a criminal lifestyle or obtained benefit from their criminal conduct).No confiscation order was made at the time
The court didn’t proceed under POCA despite the gateway being open.New evidence becomes available
The prosecution must identify evidence that was not available to them at the relevant date (usually the date of conviction or the date the court decided not to proceed).The application is made within 6 years
The prosecution must apply within six years of conviction.
If these criteria are met, the court must proceed to consider a confiscation order, even if the original decision was to take no action.
What Counts as “New Evidence”?
Section 19 is most commonly used when new assets or information come to light, including:
Hidden bank accounts
Undeclared property
Business interests or transfers not previously disclosed
The test isn’t about hindsight or better judgment, it requires genuinely unavailable evidence at the time of the original decision.
How Is the Reconsideration Carried Out?
If the application is granted, the court proceeds as if it had originally made a confiscation order, but with some important limitations:
1. Only Past Conduct Counts
The court can only consider:
Criminal conduct that occurred before the relevant date
Property obtained before that date, or
Property obtained later but derived from that past conduct
2. Lifestyle Assumptions Are Limited
If the defendant has a criminal lifestyle, the usual assumptions under section 10 POCA are scaled back:
Property held or spent after the relevant date is ignored
This limits the scope of assumed benefit
3. The Order Must Be “Just”
The court can only order a sum it believes is just and proportionate, and it must take into account:
The benefit figure under section 7
Fines or compensation already imposed
Surcharges or other relevant financial penalties
What Is the “Relevant Date”?
This term affects what evidence and conduct the court can consider:
If the court decided not to proceed under section 6, the relevant date is that decision
If not, the relevant date is the date of conviction
Why It Matters
For defendants and their legal teams, section 19 introduces long-term financial uncertainty. Even years after sentencing, a case can be reopened, and assets acquired or discovered later may still be liable for confiscation, provided they relate to earlier criminal conduct.
For practitioners, it underlines the importance of:
A thorough understanding of the Crown’s evidence
Clear records of what was (and wasn’t) available at the time of conviction
Final Thoughts
Section 19 POCA strikes a balance between finality and fairness. It allows the Crown to revisit missed opportunities, but only when new, previously unavailable evidence emerges. It can be a powerful tool, especially where assets were concealed or overlooked at the original hearing.
