Section 6 POCA: Making a Confiscation Order
Section 6 POCA: When and How the Court Makes a Confiscation Order
Section 6 of the Proceeds of Crime Act 2002 (POCA) sets out the fundamental process by which the Crown Court must decide whether to make a confiscation order following a criminal conviction.
This provision is the engine room of POCA confiscation proceedings. It determines when the court must act, what questions it must ask, and what outcomes are required when a defendant is found to have benefited from criminal conduct.
When Does Section 6 Apply?
The court is required to proceed under Section 6 when two conditions are satisfied:
The defendant is either:
Convicted in the Crown Court,
Committed to the Crown Court for sentence,
Or committed with a view to a confiscation order being considered.
Either:
The prosecutor asks the court to proceed,
Or the court considers it appropriate to do so of its own accord.
If both conditions are met, the court must consider confiscation.
The Court’s Step-by-Step Duties Under Section 6
Once the court begins the confiscation process, it must follow a structured decision-making route:
Determine whether the defendant has a criminal lifestyle.
This is a key threshold question. If the answer is yes, the court applies the criminal lifestyle assumptions under POCA.If so, decide whether the defendant has benefited from general criminal conduct.
The court assesses the total gain from all criminal activity, not just the offences of which the defendant has been convicted.If not, assess whether the defendant has benefited from particular criminal conduct.
This focuses on the specific offences before the court.If the defendant has benefited from criminal conduct, the court must then:
Determine the recoverable amount, and
Make a confiscation order requiring payment of that amount.
However, a confiscation order will only be made if it is not disproportionate. This ensures compliance with human rights principles and proportionality under domestic and European law.
When Is the Duty to Make an Order Treated as a Power?
There are two important exceptions where the court's duty becomes a discretionary power:
Where a victim of the conduct has brought or intends to bring civil proceedings.
Where unlawful profit proceedings have been or may be brought under the Prevention of Social Housing Fraud Act 2013.
In these cases, the court can decide not to make a confiscation order if it would duplicate or interfere with other civil redress.
Burden and Standard of Proof
Any decisions made under Section 6 are determined on the balance of probabilities—a lower threshold than in criminal trials. This reflects the civil nature of confiscation proceedings despite their criminal origins.
What If the Defendant Absconds?
If the defendant absconds before conviction, the first condition for Section 6 is not met. However, the court may still proceed under Section 27 POCA, which covers absconding defendants.
Why Section 6 Matters
Section 6 sets the tone for the entire confiscation process. It is the legal foundation on which the benefit figure, the recoverable amount, and the eventual order are built. A clear understanding of this section helps defence practitioners anticipate the Crown’s approach, frame rebuttals, and challenge disproportionate outcomes.
