Understanding POCA’s First Assumption: Property Transferred
When a defendant is found to have a criminal lifestyle under the Proceeds of Crime Act 2002 (POCA), the court is required to apply certain assumptions when determining their benefit from criminal conduct. One of the key tools available to the court is the first assumption, often referred to as the property transferred assumption.
What Is the First Assumption?
The first assumption under POCA 2002 provides that:
Any property transferred to the defendant at any time after the relevant day is assumed to have been:
(a) obtained by them as a result of their general criminal conduct, and
(b) obtained at the earliest time they appear to have held it.
This shifts the burden onto the defendant to demonstrate the legitimate origin of any such transfers. If they cannot do so, the property will be treated as criminal benefit.
What Is the “Relevant Day”?
The relevant day is a statutory reference point used to define when the first assumption begins to apply. Under POCA, it is defined as:
The first day of the period of six years ending with:
the day when proceedings for the offence were started, or
if there are multiple offences, the earliest date proceedings were started.
The first assumption applies to any property transferred to the defendant after this date — regardless of how much time has passed or when the property was acquired in relation to conviction.
What Counts as “Transferred Property”?
Although the legislation refers broadly to any property transferred, in practice, the assumption is rarely applied to anything other than bank credits — typically money received into the defendant’s personal or business accounts.
While gifts of property, vehicles, or other assets can theoretically fall under this assumption, in most confiscation proceedings it is used to capture unexplained financial deposits. These credits are presumed to derive from criminal conduct unless supported by verifiable evidence to the contrary.
This is why forensic review of bank statements and transaction histories is often central to rebutting the assumption.
Challenging the Property Transferred Assumption
As with all assumptions under POCA, the first assumption is rebuttable. A defendant can challenge it by providing evidence that:
The property was acquired through legitimate means
The assumption is incorrect in the circumstances
Applying the assumption would give rise to a serious risk of injustice
Common forms of rebuttal include payslips, business income records, loan agreements, gifts from family members, or inheritance — anything that clearly shows a lawful origin for the property.
Expert forensic accountancy input can be critical in compiling a strong rebuttal case, especially where the financial trail is complex or spans multiple sources.
Final Thoughts
The first assumption under POCA 2002 is designed to reverse the burden of proof in relation to property transferred after the relevant day. It gives the court power to assume that such transfers represent criminal benefit, even where the link to offending is unclear or indirect.
In most cases, the assumption is used to target unexplained bank credits — and without proper explanation, these sums can significantly inflate a defendant’s benefit figure. Defence teams must be ready to scrutinise every relevant transfer and present persuasive evidence to rebut unjust assumptions.
If you’re dealing with a POCA confiscation case and need detailed financial analysis or expert support in challenging assumptions, get in touch — we can help.
