The Proceeds of Crime Act 2002 gives courts extensive powers to confiscate assets that represent the proceeds of criminal activity. These powers apply to property including residential homes and can be used in a wide range of criminal cases, not only major organised crime matters. Understanding how these powers operate is relevant to anyone who has been convicted of a criminal offence or who has a family member facing proceedings.

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Confiscation Orders Under the Proceeds of Crime Act

When someone is convicted of a criminal offence that has generated a financial benefit, the prosecution can apply for a confiscation order. The court assesses the benefit the defendant obtained from criminal conduct and the amount that is available to them from their assets. A confiscation order requires the defendant to pay a sum of money equivalent to the benefit from crime, to the extent they have assets to satisfy it.

The benefit is calculated broadly. It is not limited to direct proceeds of specific offences and in some circumstances can include the total benefit from a criminal lifestyle, using a wider accounting approach that can significantly exceed the proceeds of the specific offence charged.

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Can the Family Home Be Included

Yes, a family home can be included in the assets available to satisfy a confiscation order, even if the property is jointly owned with a spouse or partner who has not been convicted. The court can order the sale of the property to realise the defendant's share of the equity, with the non-convicted partner receiving their share of the proceeds.

However, the court will consider the interests of the innocent co-owner. Depending on the circumstances, including the presence of dependent children, the court has some discretion in how it manages the realisation of property interests. In some cases a postponement of the confiscation order's enforcement against the family home may be granted to allow the family to relocate, though this is not guaranteed.

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Civil Recovery and Unexplained Wealth Orders

Separately from confiscation orders following a conviction, the National Crime Agency and other relevant authorities can apply for civil recovery of property that is believed to be the proceeds of unlawful conduct, without the need for a criminal conviction. They can also apply for Unexplained Wealth Orders, which require the holder of property worth more than 50,000 pounds to explain the lawful source of the funds used to purchase it. If a satisfactory explanation cannot be provided, the property may be subject to civil recovery.

These civil powers are typically used in cases involving serious organised crime, corruption, or large-scale fraud, but they illustrate the breadth of the state's powers in this area.

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Third Party Interests

The court will take into account genuine third party interests in property subject to a confiscation order. If part of the equity in a property belongs legitimately to someone other than the defendant, for example a spouse who contributed their own earnings to the purchase or mortgage, the court will seek to protect that interest. The non-criminal partner can make representations to the court about their share of the property.

The protection afforded to third party interests is limited however. If the family home was funded primarily from criminal proceeds and the co-owner benefited from those proceeds, their interests may be given less weight.

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Summary

A house can be taken in a proceeds of crime case under the Proceeds of Crime Act 2002 if a confiscation order is made and the defendant's available assets include a share in the property. Civil recovery powers can also be used without a criminal conviction in appropriate cases. Third party interests in the property, such as a spouse's legitimate equity share, will be considered by the court but do not provide absolute protection. Anyone facing proceedings of this kind requires specialist criminal defence and proceeds of crime legal advice at the earliest opportunity.