Obtaining Post-Acquired Assets Under POCA: Condemning Criminals To A Life Of Crime?

Article by Aoife Drudy, pupil at 6 Kings Bench Walk

Introduction

  1. In the opening paragraph of his judgment in Peacock [2012] UKSC 5, Lord Brown posed the following question:

    "Suppose that a convicted drug trafficker is found to have benefited from his trafficking to the extent of £1m but, having at the time realisable property worth only £100,000, a confiscation order is initially made against him just for this lesser sum. Suppose then that the defendant, entirely legitimately, later acquires property to the value of upwards of a further £900,000. Is he at that stage liable to a further court order increasing to the full extent of his criminal gain the amount recoverable under the confiscation order by reference to these after-acquired assets?"

  2. If the case falls under the provisions of the Proceeds of Crime Act 2002 ("POCA"), the answer is clearly yes. In Peacock, the Supreme Court found, by a majority of 3-2, that the result is the same under section 16 of the Drug Trafficking Act 1994 (the "1994 Act"). Much of the judgment in that case focused on complex questions of statutory interpretation, and this article does not propose to address that analysis. However, the judgment also brought up questions, upon which the Court was divided, about fairness and the proportionality of the interference with the property rights of the defendant. Do those provisions act as a disincentive for defendants to earn a legitimate living following payment of the confiscation order? If so, do the provisions thereby condemn criminals to a life of crime?

    Legislative provisions

  3. Section 16 of the 1994 Act and section 22 of POCA operate in broadly the same way. Where a confiscation order was made for a sum less than the defendant's benefit, the prosecutor or a receiver can apply for an increase in the amount of the original order. The application takes part in two stages. Under the 1994 Act, the first stage takes place in the High Court and the second in the Crown Court. Under POCA, both stages take place in the Crown Court. The stages are as follows:

    The relevant court (the High Court or the Crown Court) makes a new calculation of the defendant's assets as of the date of the application. The new calculation is mandatory. If, as a result of the new calculation, the defendant's assets are found to be greater than the original order, the Crown Court may substitute the new amount for the original amount. Under the 1994 Act the judge may substitute "such amount...

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