Section 35 POCA and the Enforcement of Confiscation Orders
Section 35 POCA: Enforcement as Fines
Section 35 of the Proceeds of Crime Act 2002 (POCA) explains how confiscation orders are enforced once they have been made by the court. It applies where a confiscation order is made and provides that the order is enforced as if it were a fine.
Enforcement as if the order were a fine
The section applies the provisions of the Sentencing Code relating to fines to confiscation orders. In practice, this means the court has the same enforcement powers as it would for unpaid fines, such as collection and recovery processes. However, the law makes clear that confiscation orders are treated more strictly than ordinary fines.
Default terms of imprisonment
Section 35 sets out maximum default prison terms if the confiscation order is not paid. The length of imprisonment depends on the size of the order:
• Amount of £10,000 or less carries a maximum of 6 months
• More than £10,000 but no more than £500,000 carries a maximum of 5 years
• More than £500,000 but no more than £1 million carries a maximum of 7 years
• More than £1 million carries a maximum of 14 years
These terms are far longer than those applied to ordinary fines. Importantly, serving the default sentence does not clear the debt. The amount remains payable until it is satisfied.
Secretary of State powers
Section 35 allows the Secretary of State to amend the maximum terms or to introduce minimum terms in the future. This creates flexibility for the government to strengthen enforcement if it chooses.
Magistrates’ Courts Act 1980 provisions
Section 35 also sets out how certain parts of the Magistrates’ Courts Act 1980 do not apply to confiscation orders.
• There is no power to dispense with immediate payment
• A confiscation order is not treated as a sum to be paid by conviction for young offenders or remission of fines
• Courts cannot carry out the usual inquiry into means under section 87(3)
This removes protections that normally apply to ordinary fines.
Why this matters
The effect of section 35 is to make confiscation orders one of the most strictly enforced financial penalties in criminal law. There is limited scope for relief, the risk of significant default prison sentences, and no remission based on inability to pay. For defendants, it highlights the importance of ensuring the available amount is calculated accurately at the confiscation hearing, because once the order is made, the enforcement regime is rigid.
Conclusion
Section 35 POCA reinforces Parliament’s intention that confiscation orders are not ordinary debts. They are enforced as fines, but with stricter rules and more severe consequences. Non-payment is not only a financial issue but also carries a real risk of imprisonment.
