Section 6 POCA Revisited: Making a Confiscation Order
The Foundation of Every Confiscation Order
Section 6 of the Proceeds of Crime Act 2002 sits at the heart of every confiscation case. While many practitioners focus on issues such as criminal lifestyle assumptions, benefit calculations, hidden assets, or disputes over available amounts, all confiscation proceedings begin with the framework established by section 6.
It is the provision that sets out when the Crown Court should consider confiscation proceedings, what questions must be answered, and when a confiscation order can be made.
Given its importance, it is worth revisiting what section 6 actually does and why it remains one of the most significant provisions in POCA.
When Does Section 6 Apply?
The Crown Court must proceed under section 6 where two conditions are satisfied.
The first condition is that the defendant has either:
Been convicted before the Crown Court
Been committed to the Crown Court for sentence
Been committed to the Crown Court for confiscation proceedings
The second condition is that either the prosecutor asks the court to proceed under section 6 or the court considers it appropriate to do so itself.
Once those conditions are met, the court must engage with the confiscation process.
This is an important point. Confiscation proceedings are not simply a matter of judicial discretion. Parliament has created a structured process that the court must follow.
The Court's Decision-Making Process
Section 6 provides a clear sequence of questions that the court must answer.
Does the Defendant Have a Criminal Lifestyle?
The first question is whether the defendant has a criminal lifestyle.
This is a crucial stage because it determines the basis upon which benefits will be assessed.
Where the court concludes that the defendant has a criminal lifestyle, confiscation is based on the defendant's general criminal conduct.
Where the court concludes that the defendant does not have a criminal lifestyle, confiscation is based on the defendant's particular criminal conduct.
The answer to this single question can have a dramatic impact on the value of any confiscation order.
General Criminal Conduct and Particular Criminal Conduct
One of the most important distinctions within POCA is the difference between general criminal conduct and particular criminal conduct.
General Criminal Conduct
General criminal conduct refers to all criminal conduct undertaken by the defendant, regardless of whether it formed part of the proceedings before the court.
This means the court is not restricted to considering only the offences on the indictment.
In criminal lifestyle cases, the court may assess benefit derived from a much broader range of conduct.
Particular Criminal Conduct
Particular criminal conduct is narrower in scope.
It generally refers to the offences for which the defendant has been convicted together with any offences taken into consideration when sentence is passed.
Where the defendant does not have a criminal lifestyle, the confiscation exercise is usually confined to this conduct.
Understanding the distinction between these two concepts is essential because it often helps explain why benefit figures in lifestyle cases can be significantly higher than those in non-lifestyle cases.
Has the Defendant Benefited?
If the court identifies the relevant conduct, it must then decide whether the defendant has benefited from that conduct.
Benefit is a concept that frequently generates dispute in confiscation proceedings.
The court is not necessarily concerned with profit. Instead, the legislation focuses on what the defendant obtained as a result of or in connection with criminal conduct.
This distinction often becomes central to arguments about the correct valuation of benefit.
Determining the Recoverable Amount
If the court decides that the defendant has benefited from criminal conduct, it must determine the recoverable amount.
The recoverable amount is not automatically the same as the benefit figure.
In many cases, the recoverable amount will be the lower of:
The defendant's benefit
The defendant's available amount
The available amount represents the value of assets available to satisfy a confiscation order.
As a result, a defendant who has obtained substantial criminal benefit may ultimately face a much smaller confiscation order if there are insufficient realisable assets available.
Proportionality
Section 6 now expressly recognises the principle of proportionality.
The court may only make a confiscation order if, and to the extent that, it would not be disproportionate to require the defendant to pay the recoverable amount.
In practice, proportionality arguments succeed only in relatively limited circumstances. Nevertheless, the provision serves as an important safeguard and reinforces the principle that confiscation is intended to remove criminal benefit rather than impose an additional punishment.
When the Duty Becomes a Power
Although section 6 is largely mandatory in its operation, there are circumstances where the court's duty to make a confiscation order becomes a discretionary power.
One example arises where a victim has started, or intends to start, civil proceedings against the defendant in respect of losses arising from the conduct.
The legislation also contains provisions relating to unlawful profit proceedings under social housing fraud legislation.
These provisions are designed to avoid duplication and the risk of multiple forms of recovery arising from the same conduct.
The Standard of Proof
A further feature of section 6 that is sometimes overlooked is the standard of proof.
Questions arising under section 6 are determined on the balance of probabilities.
This is the civil standard of proof, not the criminal standard.
Consequently, issues relating to benefit, available amount, and other confiscation matters are determined according to what is more likely than not, rather than beyond reasonable doubt.
Absconding Defendants
Section 6 does not apply where the defendant absconds before conviction.
However, that does not necessarily bring confiscation proceedings to an end.
POCA contains separate provisions dealing with absconding defendants, allowing the court to proceed in certain circumstances despite the defendant's absence.
Why Section 6 Matters
Section 6 is often overshadowed by more frequently debated topics such as criminal lifestyle assumptions, hidden assets, tainted gifts, and available amount calculations.
However, it remains the provision upon which every confiscation order is built.
It determines whether confiscation proceedings are engaged, the basis upon which benefit is assessed, the process the court must follow, and ultimately whether a confiscation order can be made at all.
For solicitors, barristers, and defendants involved in confiscation proceedings, a proper understanding of section 6 is essential. It is the starting point for every confiscation case and the foundation upon which the remainder of the POCA regime operates.
