When will assets be forfeited following a criminal conviction?

Money made from Serious Crime in the UK

Currently there are huge amounts of income made from criminal enterprises in the UK ranging from organised crime to different types of fraud such as bank fraud or mortgage fraud. If individuals are found guilty of these crimes and are found to have made huge sums of money from these crimes then it follows that they should not only be sentenced but they should not be enabled to hold onto the money made – this would not be in the public interest if criminals were able to keep the money made from illegal enterprises and have the use of it following their sentence or for their families to have the use of it.

Which body is responsible for claiming back assets made from crime?

The Proceeds of Crime Act 2002 established the Assets Recovery Agency (ARA) which was launched in January 2003 with the following three distinct functions:

  1. Criminal confiscation

  2. Civil recovery

  3. The taxation if income related to crime

However the Assets Recovery Agency was abolished by the Serious Crime Act 2007 instead transferring the powers of the Assets Recovery Agency to the following four bodies:

  • The Serious Organised Crime Agency

  • The Director of Public Prosecutions

  • The Director of the Serious Fraud Office

  • The Director of Revenue and Customs Prosecutions

These bodies have been charged with maintaining the principle that criminals should not benefit from their crimes.

Criminal confiscation

Is there any legislation in place in deal with criminal confiscations?

Part 2 of the Proceeds of Crime Act deals with the situation where a confiscation order for certain assets will be made.

When will a criminal confiscation order take place?

A criminal confiscation order will be made by a Crown Court if the two following conditions are satisfied:

  1. The first condition being that the defendant falls within any of the following:

  • The defendant is convicted of an offence or offences before the Crown Court

  • The defendant is committed to the Crown Court for sentence in respect of an offence of offences under Section 3, 4, or 6 of the Sentencing Act

  • The defendant is committed to the Crown Court in respect of an offence or offences under Section 70 of the Proceeds of Crime Act – committal with a view to a confiscation order being considered

      2.    The second condition being that:

  • That the prosecutor or the Director requests the court to proceed under the Proceeds of Crime Act

  • That the court believes it is appropriate for it to do so

Does the Defendant have a criminal lifestyle or not?

The next question which the Court must define is whether the defendant had a criminal lifestyle or not.

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For more information on:

  • What is meant by a criminal lifestyle?
  • What are the offences specified under Schedule 2 of the Proceeds of Crime Act?
  • What happens if the defendant is viewed to have a criminal lifestyle?
  • What happens if the defendant is viewed not to have a criminal lifestyle?
  • When will the defendant be viewed to have benefitted from their criminal conduct?
  • The recoverable amount
  • How will the court decide on what is the recoverable amount?
  • Market Value
  • The available amount
  • How does the court make a decision on what is the available amount?
  • When the confiscation order is made how long does the defendant have to pay the amount?