You can't take that? Can you?

If you’re facing a claim under the Proceeds of Crime Act 2002 (POCA) in the UK, the strategy depends on which stage of the process you’re in and what type of order the authorities are pursuing. These cases are complex and the stakes can be high, at The Johnson Partnership we have a specialist POCA team who devote their time to Proceeds of Crime, business defence and fraud work.

 

1. Identify the Type of POCA Action

Different POCA proceedings have different defence strategies:

• Confiscation proceedings (after a criminal conviction)
• Civil recovery by the National Crime Agency
• Account Freezing Orders (AFOs) or Account Forfeiture Orders
• Cash seizure/forfeiture
• Unexplained Wealth Orders (UWOs)

The arguments available will depend on which one you’re facing.

 

2. Challenge the “Criminal Benefit” Calculation

In confiscation proceedings, prosecutors must prove the benefit obtained from criminal conduct.

Possible defence arguments include:

• The benefit figure is exaggerated or calculated incorrectly
• Certain funds were legitimate income
• The conduct was not part of a “criminal lifestyle”
• Some assets are jointly owned or belong to someone else

At The Johnson Partnership we regularly work hand in hand with trusted and reliable forensic account teams.

 

3. Prove Legitimate Sources of Funds

At The Johnson Partnership we can help you accumulate and present the necessary documentation, moving things forward in a positive way. For civil recovery or account freezing cases, a key defence is showing lawful origin of the money or property.

Evidence may include:

• Tax returns
• Business accounts
• Contracts or invoices
• Bank statements
• Loan agreements
• Property purchase records

The burden can shift to you to explain how the funds were obtained.

 

4. Challenge the Evidence

You may be able to argue that:

• The evidence linking assets to crime is weak or speculative
• Investigators relied on incorrect assumptions
• There are procedural errors in how the investigation or seizure occurred

 

5. Argue the Assets Are “Unavailable”

In confiscation cases, even if benefit is proven, the recoverable amount is limited to the value of available assets.

A defence may show:

• Assets have already been spent legitimately
• Property belongs to a third party

At The Johnson Partnership we are used to obtaining the necessary documentation to establish what has happened to assets that might otherwise form part of an order.

 

6. Protect Third-Party Interests

Family members or business partners can intervene to prove:

• They legitimately own the property
• Their share should not be confiscated

Courts will consider these claims before making final orders.

Our POCA teams are regularly instructed by a third party who regularly establish their rights over particular assets

 

7. Negotiate or Reach Agreement

In many POCA cases, solicitors negotiate with prosecutors to:

• Reduce the benefit figure
• Agree a lower confiscation amount
• Set a reasonable payment period

This can significantly reduce financial exposure.

All the members of our POCA team are in regular negotiation with financial investigators and the Crown Prosecution Service to put our clients in the best possible position.

 

8. Appeal or Reopen the Order

If a confiscation order has already been made, options may include:

• Appeal through the Court of Appeal (England and Wales)
• Apply to vary the payment terms
• Reopen the case if new evidence emerges

We would be pleased to help you with all of these types of application.