Proceeds of crime barristers.
Specialist counsel for confiscation, restraint, cash seizure, account freezing and forfeiture, civil recovery and unexplained wealth orders under the Proceeds of Crime Act 2002 and the Criminal Finances Act 2017.
For a great many defendants the confiscation hearing is worse than the trial. A sentence ends. A confiscation order does not: it attaches to assets, it accrues interest, it carries a default sentence, and it can be reopened years later if the prosecution says more is available. People who fought the criminal charge hard and then treated confiscation as a formality routinely end up with orders that are wrong by hundreds of thousands of pounds and that follow them for a decade.
Clerk&Counsel places instructions with barristers who specialise in Proceeds of Crime Act work. This is a technical, statutory, evidence heavy field where the answer is usually found in a bank statement, a completion statement or a trust deed rather than in oral advocacy. The counsel we place are used to working with forensic accountants, to constructing hidden asset arguments, and to rebutting criminal lifestyle assumptions with documents rather than assertion.
We act at every stage, from a restraint order granted before charge, through to confiscation after conviction, to enforcement, certificates of inadequacy and applications to vary. We also act for third parties whose property has been caught by an order made against somebody else, which is a growing and frequently misunderstood area.
POCA work we place counsel for.
The barristers on the panel handle the full statutory scheme and the civil regime that sits alongside it:
- Confiscation proceedings in the Crown Court, including benefit, criminal lifestyle, available amount and hidden asset arguments.
- Section 16 and section 17 statements, and the preparation of a properly evidenced defence response rather than a bare denial.
- Restraint orders, including applications to vary for living and business expenses and applications to discharge.
- Management and enforcement receivership, and resisting the appointment of a receiver where a less intrusive order will do.
- Cash seizure and detention hearings in the Magistrates Court, and contested forfeiture applications.
- Account freezing orders and account forfeiture orders under the Criminal Finances Act 2017.
- Civil recovery proceedings brought by the National Crime Agency in the High Court.
- Unexplained wealth orders and the interim freezing orders that accompany them.
- Third party interests, including spouses, cohabitees, business partners and lenders asserting a beneficial interest.
- Certificates of inadequacy, applications to reconsider, enforcement hearings and appeals to the Court of Appeal.
How a confiscation case is properly fought.
The starting point is the prosecutor's statement of information. It sets out the benefit figure and the available amount, and it is almost always built on assumptions that can be tested. Was the conduct particular criminal conduct or general criminal conduct? Did the defendant obtain the property, or merely handle it as a courier for someone else? Was money that passed through an account genuinely obtained, or double counted where it moved between accounts the defendant controlled?
Then comes the available amount, which decides what is actually payable. Equity in property has to be valued properly with the mortgage, the third party interest and the realistic sale costs accounted for. Business assets need to be valued as they would sell, not as an accountant carried them. Hidden asset findings, which are the most damaging outcomes available to a court, are made when a defendant fails to explain a discrepancy, so answering the discrepancy with documents is the whole defence.
Timing matters throughout. Full and frank disclosure made early buys credibility. Disclosure extracted late, after a court has drawn adverse inferences, buys nothing. Counsel instructed before the section 18 response is filed is in a far stronger position than counsel handed the papers a fortnight before the hearing, which is why we encourage clients to make the call as soon as the conviction is entered or the restraint order is served.
Instructing through Clerk&Counsel.
Tell the clerks which order you are facing, which agency obtained it, the figures in play and the next hearing date. We shortlist counsel with genuine POCA experience rather than criminal practitioners who do the occasional confiscation, and we tell you where a forensic accountant should be instructed alongside counsel, because in most contested cases the accountant is what turns argument into evidence.
Fees are agreed in writing before work starts. A written advice on the merits of contesting a benefit figure is a fixed fee and is often the most valuable few hundred pounds a client spends, because it converts an intimidating statutory document into a clear list of what can and cannot be challenged.
We work with solicitors who need specialist confiscation counsel to sit behind their existing criminal team, and directly with individuals and families under the public access scheme. Both routes are available and we will advise which is appropriate for your case rather than defaulting to the one that suits us.
Specialist areas within this practice.
- Serious Fraud Barristers
SFO, FCA and complex fraud defence from investigation through to trial.
- Money Laundering Barristers
Part 7 POCA offences, SARs and regulated sector exposure.
- Drug Offences Barristers
Supply, importation and conspiracy cases, where confiscation almost always follows.
- Criminal Defence Barristers
Full spectrum criminal defence across England and Wales.
Instruct a proceeds of crime barrister.
Send the restraint order, the prosecutor's statement or the freezing order with the next hearing date. A clerk will come back with shortlisted counsel and a written fixed fee.
Common questions.
What is a confiscation order?
It is an order made after conviction requiring a defendant to pay a sum representing the benefit of criminal conduct, to the extent of the assets available to them. It is not a fine and it is not compensation. Failure to pay attracts a default prison sentence which does not extinguish the debt, and interest runs on the unpaid balance.
Why is the benefit figure so much higher than what I actually received?
Because benefit is calculated on turnover rather than profit, and because in criminal lifestyle cases the court applies statutory assumptions to property held and expenditure incurred in the six years before proceedings began. The result frequently bears little relation to what anyone kept. Those assumptions can be rebutted with proper evidence, which is where the real work in a confiscation case lies.
Can a restraint order be varied or discharged?
Yes. A restraint order can be varied to release funds for reasonable living expenses and, in defined circumstances, for legal expenses in unrelated proceedings, and it can be discharged where the statutory conditions are no longer met or where the prosecution has delayed unreasonably. Applications need to be made promptly and supported by full and frank financial disclosure.
My bank account has been frozen. What can I do?
Account freezing orders under the Criminal Finances Act 2017 are made in the Magistrates Court, often without notice, and are frequently extended more than once. They can be challenged on the evidence and on the lawfulness of the continued freeze, and forfeiture applications can be contested. Money held in an account can also be released by agreement where the lawful source can be properly evidenced.
What is a third party interest and can I protect my share?
If you own or part own property caught by a confiscation or restraint order but are not the defendant, you can apply to be heard. Spouses, business partners and parents who contributed to a deposit are the most common applicants. Evidence of contribution, intention and beneficial ownership needs to be assembled carefully and early.
Can I instruct a POCA barrister directly?
Yes in most cases. Confiscation, restraint and forfeiture work suits direct access well because it is document driven and self contained. Where the case runs alongside a substantive criminal trial, counsel will usually be instructed for both, and we will structure the fee so that the confiscation stage is quoted separately.
What does POCA work cost?
Written advice on a benefit or available amount calculation is usually a fixed fee. Contested confiscation hearings and restraint applications are quoted by reference to the hearing length and the volume of financial material, and confirmed in writing before counsel accepts the brief.