UK: Asset Forfeiture

Last Updated: 23 November 2009
Article by Tom Cawley

Does current UK asset forfeiture law strike the correct balance between the interests of the general public in the recovery of the proceeds of crime and the rights of the defendant?

It is not a matter in dispute, nor simply the rabid knee jerking of the tabloid press, that the interests of the general public dictate that crime should not pay, and that criminals should be stripped of assets obtained through their criminal conduct. The rights of defendants subject to confiscation proceedings, and indeed the basis of prosecution in the UK, that the Crown brings the case and therefore it is for the Crown to prove their case, must however be weighed against this. Asset forfeiture law in the UK, when challenged on the grounds of proportionality in the case of R v Smith1, elicited this response at para 23 from their Lordships;

"If in some circumstances it can operate in a penal or even a draconian manner, then that may not be out of place in a scheme for stripping criminals of the benefits of their crimes. That is a matter for the judgment of the legislature, which has adopted a similar approach in enacting legislation for the confiscation of the proceeds of drug trafficking."

Tackling financial crime has been held by the European Jurisprudence to be a legitimate aim, and the UK confiscation regime a proportionate means of achieving that aim (as in the case of Philips v United Kingdom2).

The present legislative position has its origins in the failure to recover the proceeds of crime in Operation Julie3. The findings of the parliamentary Hodgeson Committee established after the conclusion of the case (where £750,000 worth of assets although traced were not able to be recovered) were largely enacted in the Drug Trafficking Offences Act 1986. This act itself was superseded by the Drug Trafficking Act 1994, and crime other than drug trafficking came into the regime following the Criminal Justice Act 1988, superseded by the Criminal Justice Act 1993 and the Proceeds of Crime Act 1995.

UK asset forfeiture law now stems from the Proceeds of Crime Act 2002 (hereafter POCA). S6 of the Act sets out the circumstances where a confiscation order will be made, and the process is mandatory where the Crown requests it.

The principle of recovery of the proceeds of crime is given strong backing through the way the Court must calculate criminal benefit and the amount in which any order should be made.

POCA requires the Court to determine whether the defendant has a criminal lifestyle4 and if so whether he has benefited from his general criminal conduct prior to determining the level of benefit from his particular criminal conduct (i.e. his substantive criminal offences). The criminal lifestyle provisions5 represent the greatest change from the previous legislative regime. Criminal lifestyle confiscation proceedings require the Court to make the assumptions that any property transferred to the defendant during the relevant period (6 years prior to commencement of proceedings), any property obtained by the defendant within the relevant period, and any expenditure by the defendant within the relevant period shall be held to be criminal benefit unless the defendant can show the assumption is incorrect or that there would be a serious risk of injustice if the assumption were made.

It is clear that the "criminal lifestyle" provisions are the main reason as to why confiscation proceedings are often referred to as having draconian outcomes, as the assumptions can result in vast figures added to the defendant's particular criminal benefit (i.e. what he has obtained through his substantive offending).

The value of the benefit to a defendant is defined as the value of property (or pecuniary advantage) obtained through or in connection with criminal conduct.

Of note are the recent House of Lords decisions in the cases of R v May6 (and the linked cases of Green7 and Jennings8 ), where it was confirmed that the value of the benefit is the total value, not the net profit to a defendant9, and that "obtained" means by the relevant defendant10. Perhaps most important in consideration of the question posed by this essay, where two or more defendants obtain property jointly, each is to be regarded as obtaining the whole of it11. In a conspiracy, the Court should consider the facts when deciding whether a defendant has "obtained" and therefore benefited12.

This can result in confiscation orders, particularly in the case of multiple defendants, where benefit figures from the particular criminal conduct alone dwarf the actual criminal property involved.

When applying the assumptions POCA requires the Court to make, the burden of proof is reversed. The defendant himself must account for his benefit and his available assets. In the case of Walbrook and Glasgow13, the dicta was established that a defendant must provide "clear and cogent evidence" to disprove assumptions in confiscation cases, and that where their evidence stood alone, unsupported but for their own word, it was to be accorded minimal credibility.

In practice, and speaking purely anecdotally, it could be said that where they deal with the evidence of a defendant in confiscation proceedings, Judges in practice give little weight to it. An obvious response to this would be to say that their evidence is naturally going to be given less weight as they, of course, are convicted criminals. A defendant in confiscation proceedings can face consequences far in excess of the punishment for the original offence, not least the default sentence. It is arguable his evidence should be given greater weight, particularly when consider the question of his assets.

After considering benefit, the Court considers the available amount. The defendant must satisfy the court of his current assets14.

In a PACE interview, a solicitor or legal representative present is often called upon to object to questioning by officers on the basis that their questioning is oppressive, misleading, confusing, or generally improper. One of those situations is where a defendant is asked to prove a negative. When dealing with the available amount, and in particular when faced with a court finding of "hidden assets", the defendant is being asked to prove a negative.

The Courts have said of this matter in the past that it is not for the Crown to suffer the burden of conducting investigations into a defendant's assets15. Yet it is the Crown that bring the proceedings, and they have far wider reaching powers. It is submitted this is an area where the balance is too far away from the rights of the defendant, as he is often faced with a finding of hidden assets which can result in an order to satisfy an artificially inflated benefit figure (as above).

A defendant, often serving a lengthy prison sentence rarely operates on an even investigative footing to the Crown. Cooperation with law enforcement by financial institutions is long established. The defendant is not always afforded the same level of cooperation.

POCA itself provides the basic safeguard that when the Court is asked to apply the assumptions by the Crown, it should not do so where to do so would create a serious risk of injustice16. The case of Dore17 sets out that injustice must result from the application of the assumptions not the hardship of the order itself. This safeguard does at least protect defendants from double counting.

A further protection exists for defendants in limited circumstances may be asking the Court to stay the confiscation proceedings as an abuse of process. This was examined recently by the Court of Appeal in the cases of Morgan and Bygrave18 and R v Shabir19. The former case concerned situations where defendants (of note, not subject to criminal lifestyle proceedings) claimed to be able to re-pay an identifiable victim. The Court found favour in the principle that confiscation in these circumstances would be an abuse of process, but neither appellant succeeded. Shabir however was successful, where in a case concerning money transfers, all but £464 was in fact owed to the appellant. The totality of the money transfers was applied as benefit however, giving a confiscation order in the sum of £212,000.

In Shabir the Court indicated their ruling was the result of the "very unusual and exceptional facts of the case". Any action on behalf of the defendant for abuse of process will be limited to a narrow range of cases. Although the CPS has recently issued guidance for their prosecutors on situations where it would be inappropriate to proceed with confiscation20, the defendant's rights are dependant on having knowledgeable and forthright representation.

When considering whether the right balance has been struck, the application of POCA in practice should also be considered. On 3rd August 2008, The Telegraph reported on a case where, after prosecution by the Marine and Fisheries Agency prosecuted Victor Good, Trevor Mole, and Steve Barnes, for landing 19 tons of sole for which they had no EU quota21. The total value of this fish was approximately £99,000. Confiscation orders were then made totalling £213,461.

A similar case in Cornwall was reported by The Times, where the trawling company W Stevenson and Sons were ordered to pay £710,000 in a confiscation order22. The skippers in this case, it was reported, argued that if EU rules had been observed, fishermen would have had to throw millions of fish back into the sea. This held no weight with the Court and following conviction, the criminal charges in this case gave rise to a criminal sentence of a two year conditional discharge, and nominal fines. The offence itself however allowed the full force of confiscation law to be engaged.

The situation gained public profile to the extent that a petition was (and indeed is) still in place on the 10 Downing Street website, requesting that the government cease use of POCA against fishermen23. To quote from the online petition;

"[the fishermen] have received fines ... [once] imposed the authorities have pursued the families stripping assets using the Proceeds of Crime Act. The act is on the statute to strip assets from criminals who have amassed their wealth from criminal acts"

The fishermen, it would seem, would not necessarily fall into the general public's usual definition of criminality. Legitimate assets (perhaps obtained through a lifetime of dangerous work at sea) are used to satisfy the benefit figures produced.

Further concern has been raised also more recently by The Times, as to the motivations of the prosecuting agencies tasked with enforcing the law24. RCPO, it is reported, pay high level staff bonuses based on amounts realised on confiscation. It is also disclosed the agency itself receives a "cut" of the proceeds recovered. Targets for confiscations are set, with concerns raised that such targets "skew justice", with the various criminal justice agencies standing to benefit from confiscation orders made. Conflict between competing agencies of the justice system can be seen at present through the duality that exists when the Police apply for cash forfeiture as a civil action, whilst the Crown instigate criminal confiscation proceedings.

It can often be the case that a defendant convicted of an offence finds himself subject to civil cash forfeiture prior to the conclusions of confiscation proceedings. Anecdotally one reason for this is indicated to be that the Police receive a greater share of the forfeiture in this manner, rather than waiting until the confiscation proceedings conclude in the Crown court. It is submitted that confiscation of cash via forfeiture proceedings is an easier process than confiscation for the Crown.

POCA grants powers to the Police officers to search, seize and detain amounts of cash totalling £1,000 or more suspected of being the proceeds of crime or intended for use in criminal activity25. Subsequent to this seizure, the matter must be brought before the magistrates court within 48 hours, and orders may then be made for return of the cash or continued detention.

The police may make an application for the cash to be forfeited, and the Courts will order this if no satisfactory explanation for the provenance of the cash is provided26. The burden rests on the applicant, to the balance of probabilities. He is also at the mercy of "case-hardened" magistrates.

One example of an applicant who failed to satisfy the court of this matter was an unnamed resident of Port Talbot, who after calling the police to report an attempted burglary subsequently found himself having £67,000 cash seized from his property, and forfeited27.

Further to the civil procedures relating to cash seizures, POCA goes further than any of its preceding legislation by way of the civil recovery provisions. These provisions act against "recoverable property28" rather than individuals. They therefore require no criminal conviction. Initially used by the Assets Recovery Agency (now absorbed into SOCA29), the investigating authority will apply for a property freezing order in the High Court, and in the following proceedings the respondent must satisfy the court (to the civil standard of proof) that the property has not been obtained through unlawful conduct.

The effect on the respondent is that they find themselves being put in a position of undergoing civil litigation to retain their property, with the burden of proof reversed. Being a civil action, legal aid is more difficult to obtain than in criminal proceedings and limited in scope. A respondent is also prevented from using restrained or frozen assets to pay legal fees30. As the matter is a civil one, costs in defending an action such as this are likely to be higher than in the criminal courts. The costs sanctions such as refusing a Part 36 offer by the investigating authority will also apply. Perhaps the most concerning aspect of this is that the investigating authorities, representing the state, have none of the potential restrictions or liabilities regarding costs that a respondent shoulders.

The aim appears to be to confiscate property from individuals who although perhaps undesirable, are guilty of no offence. The civil recovery provisions are anathema to a defendant's rights.

Having considered the powers available and the protections for defendants, does UK law strike the correct balance? Clearly the public interest (quite rightly) demands that proceeds of crime should be recovered, but it is submitted that the law as it presently stands often places defendants in untenable positions, with little by way of safeguard.

The way that benefit is calculated, certainly at the present time following their Lordships rulings, can allow in effect for double counting. As long as multiple defendants can be said to "benefit" in the entire amount, defendants can be disadvantaged from the off, and the Crown in effect create greater criminal property than ever existed. Combined with the spectre of a hidden assets finding, defendants may find themselves trying to prove a negative, or being forced to accept an unfavourable settlement.

Civil recovery actions not only force an un-convicted individual to prove his assets are legitimate, but force them to shoulder the burden of Costs, for example in the consequences of refusing a Part 36 offer by the Crown.

Confiscation proceedings are driven by targets, and the range of protection afforded via judicial discretion is narrow.

The reverse burden of proof, particularly in criminal lifestyle and cash forfeiture cases, combined with difficulties that can be faced in providing the requisite "clear and cogent" evidence, prejudice proceedings against defendants. If they give evidence themselves, they are scarcely believed.

Interviewed on the BBC's Panorama programme "Crime Pays"31, former home secretary David Blunkett states that he is disappointed in the outcomes of the legislation that he helped to put into practice. Although Mr. Blunkett no longer speaks for the government, it is submitted his opinion will be far from rare.

Any government (or prospective government) seeking votes will always do so on the pretext of cracking down on crime. Their rhetoric panders to the general public opinion that crime should not pay. What is concerning is that this should always be done so at the expense of the defendant's rights, and with regard to asset forfeiture law, the decades since Operation Julie have seen a steady increase in the powers available to the Crown, at the expense of the accused.

Whether the current UK law regarding asset forfeiture does in fact strike the correct balance between the public interest and defendant's rights may end up an irrelevant question, as it is almost inconceivable that future politicians will seek to win votes by way of strengthening protection for defendants.

In short, it seems unlikely that any future government will seek to withdraw powers introduced by their predecessors.


1. [2001] UKHL 68

2. [2001] Crim LR 817

3. Police investigation into LSD production conducted during the 1970s –

4. s8 of POCA

5. set out at s75 of the Act

6. [2008] UKHL 28

7. [2008] UKHL 30

8. [2008] UKHL 29

9. May, para 48(1)

10. Jennings para 14

11. Green para 15

12. This was the opinion of the Court of Appeal in the more recent case of R v Sivaraman [2008] EWCA Crim 1736

13. [1994] 15 Cr App R (S) 783

14. In the case of R v Barwick [2001] 1 CAR (S) it was noted by the Court that "Clearly the onus of proving or establishing the benefit is on the prosecution. In our view, certain provisions of the Act, principle and decided authority all clearly indicate that if the defendant then wishes to contend that the amount that might be realised is less, the burden is then on him to do so."

15. See footnote 14

16. s10(2) of POCA

17. [1997] 2 Cr App R(S) 152

18. [2008] EWCA Crim 1323

19. [2008] EWCA Crim 1809

20. Following the case of R v Paulet [2009] EWCA Crim 288





25. ss289, 294, 295 POCA

26. s298 POCA and The Magistrates' Courts (Detention and Forfeiture of Cash) Rules 2002


28. As defined in Part 5 of POCA

29. It was reported in January 2007 that the ARA had recovered only £8million despite costing £60million to establish;

30. s252(4) POCA

31. First broadcast 16th March 2009

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.