Determining a Defendant’s Interest in Property
Section 10A POCA 2002: How Courts Determine the Defendant’s Interest in Property
Under the Proceeds of Crime Act 2002 (POCA), section 10A plays a vital role in ensuring fairness during confiscation proceedings—particularly when jointly owned property is involved. This provision empowers the court to determine the extent of the defendant’s interest in property where there may also be an interest held by another person.
If you're dealing with a confiscation order, understanding how the court applies section 10A POCA 2002 can make a significant difference to the available amount and the outcome for third parties like spouses or business partners.
What Is Section 10A of POCA 2002?
Section 10A POCA 2002 allows the court, at the time it makes a confiscation order, to determine the proportion of an asset that belongs to the defendant. This is particularly relevant where:
A defendant holds property that could be sold or used to satisfy a confiscation order; and
A third party may also have an interest in that same property (e.g. a jointly owned home or shared business asset).
When Can the Court Use Section 10A POCA?
According to section 10A(1), the court can determine the defendant’s interest in property if:
The defendant holds property likely to be realised or used to satisfy the confiscation order; and
Someone else may hold an interest in that property.
This could include:
Jointly owned houses
Shared bank accounts
Co-owned vehicles or business assets
The court has discretion in whether to exercise this power. It is not automatic, but it is often used where joint ownership would otherwise cause delays or disputes during enforcement.
The Importance of Procedural Fairness
Before a court can make a determination under section 10A POCA 2002, it must ensure procedural fairness. Under section 10A(2):
“The court must not exercise the power... unless it gives to anyone who... may be a person holding an interest in the property a reasonable opportunity to make representations to it.”
This means that third parties—such as a spouse, civil partner, or co-owner—must be notified and allowed to present their case. In practice, this could involve a short hearing or written submissions about the ownership structure of the asset.
What Does “Extent of Interest” Mean?
The “extent of the defendant’s interest in property” refers to the proportion of the asset’s value that the court determines belongs to the defendant.
For example:
If a house is worth £400,000 and the court finds the defendant owns 50%, the realisable amount is £200,000.
If the defendant made all financial contributions, the court might determine a 100% interest—even if the property is held in joint names.
The court will assess:
Land Registry documents
Mortgage records
Purchase contributions
Declarations of trust
Forensic accountancy reports, if available
This step is crucial in cases where there’s a dispute over who really owns what.
Why Is Section 10A POCA So Important?
A determination under section 10A POCA 2002 is legally binding for the purposes of enforcing the confiscation order. According to section 10A(3), the court’s decision is conclusive when it comes to:
The realisation or sale of the property
The transfer of an interest in the property
Any enforcement action relating to that property
However, section 10A(4) makes it clear this does not apply to appeals before the Court of Appeal or Supreme Court, and is also subject to section 51(8B).
Strategic Considerations for Defence Lawyers and Experts
Understanding how to handle section 10A issues can be critical in POCA proceedings. Defence teams should:
Identify any jointly owned property early
Notify any third parties with a potential interest
Gather evidence to support the defendant’s beneficial interest claim
Consider using a forensic accountant to quantify contributions and ownership
Being proactive can reduce the available amount, protect innocent co-owners, and strengthen negotiations around the confiscation order.
Final Thoughts: Why Section 10A of POCA 2002 Matters
Section 10A of the Proceeds of Crime Act 2002 helps the court resolve questions of ownership and interest in property at the point the confiscation order is made. This avoids lengthy and costly disputes later on, and protects both enforcement agencies and third parties.
If a confiscation order is being pursued, or if you're advising someone with jointly owned property, understanding the court’s powers under section 10A POCA can be essential.
