Law stated as at the 6th November 2026

Confiscation Proceedings: How the Crown Court determines the amount to be paid.

The law on confiscation following conviction is technical and draconian. It is important to receive expert legal advice.

Following a conviction, the Crown Court may order a defendant to pay a sum reflecting the benefit obtained from criminal conduct, with a term of imprisonment in default. In this article DWK Law explain when confiscation must take place, how benefit and the available amount are calculated, the "criminal lifestyle" assumptions, and the requirement of proportionality.

In summary:

• Confiscation is a separate stage after conviction, decided on the balance of probabilities.

• Where the defendant is found to have a "criminal lifestyle", the court must make statutory assumptions about the source of the property, assets and expenditure, unless the assumption is shown to be incorrect or there would be a serious risk of injustice. Rebutting the presumption can certainly be achieved, but it requires effort and time.

• ‘Benefit’ is measured by the value obtained, not by profit, and the order will be for the full benefit figure unless the defendant shows that his available amount is less. The issue of benefit is one of the key issues in these proceedings that is challenged by the defence and negotiated. Establishing or negotiating a reduced benefit figure can have huge implications on a convicted defendant and their families.

• An order must not be disproportionate, and serving the default term does not wipe out the debt. Again, this can be a very powerful argument.

Why confiscation and confiscation proceedings matter

A confiscation order under Part 2 of the Proceeds of Crime Act 2002 ("POCA") is frequently the most financially serious consequence of a conviction, and the sums involved often far exceed any fine. Confiscation is a distinct stage, separate from sentence.

In this article, DWK Law set out how an order comes to be made and how the amount is fixed. (The statutory provisions referred to are stated as amended by those parts of the Crime and Policing Act 2026 which came into force on the 29th June 2026. Other amendments made by that Act, including to section 7, to the enforcement of

confiscation orders and to the legal expenses provisions of section 41, are not yet in force.)

When the court must proceed

Under section 6 of POCA, the Crown Court must proceed to confiscation where two conditions are met:

(i) First, that the defendant has been convicted (or committed to the Crown Court for sentence or with a view to confiscation); and

(ii) Secondly, that either the prosecutor asks the court to proceed or the court believes it appropriate to do so.

Section 6(4) then sets out the questions the court must answer:

(i) Whether the defendant has a "criminal lifestyle"; if so,

(ii) Whether the defendant has benefited from his general criminal conduct; and,

If the court is not asked by the prosecution to decide the answer to these questions, or if the court decides that the defendant does not have a criminal lifestyle, the next the next issue is to establish whether the defendant has benefited from his/her particular criminal conduct.

If the court finds that the defendant has benefited, it must decide the "recoverable amount" and make a confiscation order for that sum (section 6(5)). Every question under section 6 is decided on the balance of probabilities (section 6(7)).

The criminal lifestyle tests

Section 75 provides that a defendant has a criminal lifestyle only if an offence concerned is specified in Schedule 2 (which includes, for example, drug trafficking, money laundering and people trafficking), forms part of a course of criminal activity, or was committed over a period of at least six months.

Under the second and third of those tests, the defendant must also have obtained relevant benefit of at least £5,000. The section 75 tests, and the offences listed in Schedule 2, were widened by the Crime and Policing Act 2026 in relation to conduct occurring wholly after the 29th June 2026.

A criminal lifestyle finding brings the four statutory assumptions in section 10 into play.

In broad terms, they are that property transferred to or held by the defendant, and his expenditure, derive from his general criminal conduct, and that property is held free of any other interests.

The assumptions place the practical burden on the defendant, but the court must not make an assumption if it is shown to be incorrect, or if there would be a serious risk of injustice in making it.

Since the 29th June 2026, in deciding whether there would be a serious risk of injustice, the court must consider all the circumstances of the case, giving appropriate weight to the evidence and to any explanation the defendant gives for being unable to produce evidence.

These assumptions, unless rebutted, can have extremely harsh consequences on potentially innocent third parties such as friends and family members. In these circumstances such individuals may well require their own representation to establish a legitimate interest in assets, property or money.

Measuring benefit

Under section 76, a person benefits from conduct if he obtains property as a result of or in connection with it, and his benefit is the value of the property obtained. A pecuniary advantage, such as the evasion of a liability, is treated as a sum of money equal to its value.

The leading authority remains R v May [2008] UKHL 28, in which the House of Lords set out the broad principles: the purpose of the regime is to deprive the defendant of the benefit he has gained, within the limits of his available means; it does not operate by way of fine; and benefit is the total value obtained, not the net profit after expenses or payments to others. A defendant who obtains property jointly with others obtains the whole of it.

In Jennings v CPS [2008] UKHL 29, decided at the same time, the House confirmed that a person is only to be treated as benefiting from property which he actually obtained, which ordinarily connotes ownership or a power of disposition or control.

Since the 29th June 2026, section 76(8) has permitted the court, broadly, to reduce the value of the benefit (if necessary to nil) where the defendant intended to have only limited control of the property, held it only temporarily, or is treated as having obtained it under section 84(3), and it would be unjust to treat him as having obtained its full value.

The recoverable amount and the available amount

The recoverable amount is equal to the defendant's benefit. However, if the defendant shows that his "available amount" is less than the benefit, the order is made for the available amount, or for a nominal amount if that is nil. The available amount is, broadly, the value of the defendant's free property, together with the value of any tainted gifts and, since the 29th June 2026, any hidden property. A very large benefit figure may therefore result in a much smaller order where the defendant can prove that his assets are limited, although the order may be revisited later if further assets come to light.

Proportionality

In R v Waya [2012] UKSC 51, the Supreme Court held that a confiscation order must not be made to the extent that it would be disproportionate and so breach Article 1 of the First Protocol to the European Convention on Human Rights. Section 6(5) was then amended by the Serious Crime Act 2015, with effect from the 1st June 2015, so as to provide expressly that the court is to require payment of the recoverable amount only if, or to the extent that, it would not be disproportionate to do so. The object of the legislation is to remove the proceeds of crime, not to punish, so an order which would require a defendant to pay again a sum he has already fully restored to the loser is disproportionate, since it would operate simply as a further penalty.

The principle has since been developed. In R v Ahmad [2014] UKSC 36, the Supreme Court held that, although each of several co-defendants may be found to have obtained the whole of a jointly obtained sum, it would be disproportionate for the state to recover the same proceeds more than once, so that the orders must be subject to a condition preventing double recovery. In R v Harvey [2015] UKSC 73, the Supreme Court held that VAT actually accounted for to HM Revenue and Customs should not be included in the benefit figure, since recovering it would be disproportionate.

Where property was obtained some time before the confiscation proceedings, its value is, broadly, adjusted to take account of later changes in the value of money (section 80(2)). In R v Ibori [2026] EWCA Crim 1396, decided on the 3rd November 2026, the Court of Appeal considered whether that uplift (referred to as the "CVM" uplift, for change in value of money) ought to be applied to a criminal benefit which had been frozen by a restraint order and whose value had not increased, or had increased by less than the change in the value of money. The Court held that "there is nothing disproportionate in applying the CVM uplift to assets subject to a restraint order" ([47]). The uplift reflects the change in the value of money rather than in the value of the particular assets ([31]), the form in which the benefit was held was the result of the defendant's own choice ([49]), and the fact that the Consumer Price Index may move by more or less than the value of particular assets "is simply an aspect of the vicissitudes of life" ([52]). The Court also considered amendments made to the confiscation provisions by the Crime and Policing Act 2026, but held that the cases before it fell to be decided in accordance with the law in force when the confiscation orders were made ([56] and [58]).

Non-payment

A confiscation order carries a term of imprisonment in default of payment. By section 38, the default term does not begin to run until after any custodial sentence for the offence, and serving it does not extinguish the debt, since the order continues to have effect for the purposes of any other method of enforcement. Interest also accrues on sums which remain unpaid. A confiscation order is not, therefore, something which can simply be "served off".

How DWK Law can help

DWK Law advise and represent defendants throughout confiscation proceedings, including disputing the benefit figure, proving the available amount, challenging the section 10 assumptions and arguing proportionality.

Speak to a member of our team in confidence on 020 3179 2924, or by email to info@dwklaw.co.uk.

DWK Law. This guide is for general information only and is not legal advice. The law is stated as at the 6th November 2026 and may have changed since. Advice should be taken on the facts of any particular case.