Understanding POCA’s Second Assumption: Property Held
In confiscation proceedings under the Proceeds of Crime Act 2002 (POCA), when a defendant is found to have a criminal lifestyle, the court is required to apply a series of statutory assumptions. These assumptions are powerful tools that can significantly affect the calculation of a defendant's benefit from criminal conduct.
One of the most important of these is the second assumption — commonly referred to as the property held assumption.
What is the Second Assumption?
The second assumption under POCA 2002 states:
Any property held by the defendant at any time after the date of conviction 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 assumption allows the court to treat property the defendant currently possesses — or possessed after conviction — as having been funded by criminal activity unless the defendant can prove otherwise.
The Importance of “Property Held”
The phrase “property held” is crucial here. It refers not just to assets physically in the defendant’s possession, but to any form of legal or beneficial ownership. This can include bank account balances, vehicles, real estate, shares, or anything else that qualifies as “property” under POCA.
The property held assumption simplifies the prosecution’s job. They don’t have to prove that a specific asset came from a particular crime. Instead, it’s up to the defendant to rebut the assumption by showing the property was obtained through legitimate means.
Not Governed by the “Relevant Day”
One key feature of the second assumption is that it is not subject to the relevant day restriction that applies to some of the other assumptions.
So, what is the relevant day?
Under POCA, the relevant day is defined as the first day of the six-year period ending with:
the day proceedings were started against the defendant, or
(if multiple offences are involved) the earliest date proceedings began.
Other POCA assumptions, like the first assumption (which relates to transfers of property), only apply to activity after the relevant day. But the second assumption — the one concerning property held — applies to any property held at any time after conviction, regardless of when it was acquired.
This can have serious consequences. A defendant may be required to explain the origins of an asset acquired long before the offence or confiscation proceedings — as long as they still held it after conviction.
Challenging the Property Held Assumption
While powerful, POCA’s assumptions are not absolute. A defendant can challenge the second assumption by providing credible, verifiable evidence showing:
the property was not obtained through criminal conduct, or
the assumption is incorrect or would result in a serious risk of injustice.
Examples of legitimate rebuttal include inheritance, documented legitimate earnings, or evidence of a pre-conviction purchase funded by legal means.
Conclusion
The second assumption, or property held assumption, is a critical concept in POCA confiscation cases involving a criminal lifestyle. Because it doesn’t rely on the “relevant day”, it casts a wide net over a defendant’s assets. Solicitors and defence teams need to be proactive in identifying which assets may fall under this assumption — and gather the necessary evidence to rebut it where appropriate.
For expert forensic accountancy support in challenging POCA assumptions and preparing detailed rebuttals, get in touch with us today.
