Confiscation Orders under Part 2 of POCA are a post-conviction remedy. Broadly speaking, the purpose of a confiscation order is to prevent an offender from benefiting from the proceeds of their crime by confiscating an amount which is the lesser of the “benefit” which they have obtained from their criminal conduct and their “available assets” (i.e. the offender’s gross assets less secured liabilities). The computation of “benefit” is complex.
Where the offender has a “criminal lifestyle” pursuant to section 75 of POCA, then “benefit” comprises: (i) the benefit derived from the offence(s) of which the offender has been convicted; (ii) the benefit calculated under certain statutory assumptions with regard to income and expenditure; and (iii) the benefit of any earlier criminal conduct at any time which can be proved to the civil standard of proof.
When considering whether an offender has a “criminal lifestyle”, the assumptions that the court will make can have the effect that any profits and revenue earned by the offender can be confiscated, unless there is cogent evidence to the contrary, or if there is otherwise a serious risk of injustice.