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Confiscation: ‘Obtaining’

The purpose of confiscation proceedings, which is clearly stated in the explanatory notes to PoCA 2002, is to “recover the financial benefit that the offender has obtained from his criminal conduct.” The purpose is not to remove something which the offender has not obtained or to introduce some form of fine as an additional punishment.

The starting point for any proper analysis of benefits in confiscation proceedings is s.76(4) of PoCA 2002 which provides that “A person benefits from conduct if he obtains property as a result of or in connection with the conduct” and s.76(7) which provides “If a person benefits from conduct his benefit is the value of the property obtained.”

A good example is cases concerning the production and/or cultivation of cannabis plants. Financial Investigators will invariably seek to attribute a bulk yield value of mature female and fully flowering plants to each plant recovered during a criminal investigation, whereas only a small minority of plants recovered will be fully mature.

It is imperative that any Defendant facing confiscation proceedings is robustly represented. If hypothetical values advanced by Financial Investigators are not opposed robustly the proceedings will almost inevitably result in disproportionate and unjust orders, which can remain with a Defendant for life.

In an ongoing case, IKP Solicitors used prosecution evidence, together with an independent expert report from a trusted expert consultant, to argue that the value of materials actually recovered during the criminal investigation was a small fraction of the value advanced by the Financial Investigator. The prosecution has conceded and the proceedings are set to conclude by way of agreed order, incorporating a reduction of more than £550,000 and more than 94% to the prosecution case.

The issue of ‘obtaining’, although outwardly simply, is in fact one of the most litigated aspects of PoCA. It is imperative that Defendants are represented by genuine PoCA experts to challenge financial investigators and prosecutors.

The PoCA and Financial Crime department at IKP Solicitors, led by James O’Hara and Paul O’Donnell, possess the necessary subject matter expertise to assist Defendant’s to navigate the complexities of any PoCA case and compliments his expertise with a bank of trusted expert consultants. Both are members of an elite group of Solicitors in the UK ranked by Chambers and Partners in the area of ‘PoCA Work & Asset Forfeiture’.


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