Confiscation Benefit Figure Reduced by Over £3.5 Million After Contested POCA Hearing

“They Wanted £3.6 Million. The Court Said £99,000.”

When the prosecution served its statement in the confiscation proceedings, the number was stark: £3,663,003.43. That was the figure the Crown said our client had benefited from a nationwide Class A drugs conspiracy, and it was the same figure already accepted by the leader of the organised crime group and two other senior members during their own proceedings.

Our client had been convicted at trial and held a managerial position within the group. On paper, the prosecution’s arithmetic looked straightforward: senior role, large conspiracy, large benefit figure.

But confiscation law is not arithmetic. It is evidence. And the evidence, once properly examined, told a very different story.

This is the account of how Stuart Miller Solicitors, working with leading counsel Lisa Bald and junior counsel Rory Gordon, reduced that figure by more than £3.5 million at a contested hearing before the Crown Court.

The Allegation

The underlying conviction was for conspiracy to supply Class A drugs on a nationwide scale. The record does not say which specific Class A drug was involved or the precise duration of the conspiracy. What is clear is that the operation was substantial, involving an organised crime group with a defined hierarchy.

Our client occupied a senior position within that hierarchy. The prosecution described his role as “managerial.” At the sentencing stage, that seniority was reflected in the custodial term imposed. The record does not say what that sentence was.

After sentencing, the focus shifted to confiscation under the Proceeds of Crime Act 2002 (POCA). The prosecution’s position was that because our client held a senior role, he should be treated as jointly liable for the entire financial benefit of the conspiracy, £3,663,003.43. That figure had already been agreed by the OCG’s leader and two other significant members during their own confiscation proceedings.

In the Crown’s view, our client’s managerial status made him responsible for the same sum.

The Law: How Confiscation Works and Why Role Is Not the Same as Receipt

Confiscation proceedings under POCA 2002 take place after a defendant has been convicted. They are not a second trial. Their purpose is to determine how much the defendant financially benefited from their criminal conduct and to make an order requiring them to pay that amount back, or as much of it as they realistically can.

The key stages are:

• Benefit figure, the total value the court finds the defendant obtained from criminal conduct (s.8, POCA 2002).
• Available amount, the value of the defendant’s realisable assets at the time of the order (s.9, POCA 2002).
• Recoverable amount, the lesser of the benefit figure and the available amount (s.7, POCA 2002). This is the sum the defendant is actually ordered to pay.

Where a defendant is found to have a “criminal lifestyle”, which is automatic for certain offences, including drug trafficking under s.75 of POCA 2002, the court must apply a set of statutory assumptions under s.10. These assumptions treat all property held, received, or spent by the defendant over a six-year period as the proceeds of crime unless the defendant can prove otherwise. They can dramatically inflate the benefit figure.

The critical legal point in this case was the distinction between role and receipt. The prosecution’s argument effectively conflated the two: because our client was senior, he must have benefited to the same degree as the leader.

The Court of Appeal addressed this precise issue in Sivaraman [2008] EWCA Crim 1736. The court held that the assessment of a defendant’s involvement in a conspiracy for sentencing purposes is a different exercise from the assessment of the pecuniary benefit they personally obtained for confiscation purposes. A defendant may play a significant role in a criminal enterprise without personally receiving a proportionate share of its proceeds.

In plain English: the judge at sentencing may conclude you were important to the operation. That does not automatically mean you pocketed the same money as the person at the top.

The Evidence: Message Traffic and Piecemeal Payments

The defence’s case turned on the detail of the financial evidence, specifically, the message traffic between our client and the leader of the OCG.

Lisa Bald and Rory Gordon, working with caseworker Sophie Slaney, conducted a meticulous analysis of those communications. The messages revealed a pattern that was inconsistent with the prosecution’s claim of joint liability for the full £3.6 million:

• Piecemeal payments, Our client was frequently paid for specific tasks or services on an ad hoc basis, rather than receiving a share of the conspiracy’s overall profits.
• No evidence of profit-sharing, The message traffic did not show our client receiving percentage-based distributions or lump sums consistent with a senior partner in a £3.6 million operation.
• Transactional relationship, The communications suggested a working relationship in which our client was compensated for discrete contributions, not a financial partnership in the enterprise as a whole.

The prosecution maintained its position throughout. It argued that the agreed figure of £3,663,003.43, already accepted by the OCG’s leader and two other members, should apply equally to our client given his managerial role.

The hearing was contested over several days. Our client gave evidence. The court heard detailed submissions from both sides on the proper application of Sivaraman to the facts of the case.

What Was at Stake

The difference between £3,663,003.43 and £99,372.99 is not abstract. It is £3,563,630.44.

Under s.38 of POCA 2002, if a defendant fails to pay the confiscation order within the time allowed, the court imposes a default sentence, an additional term of imprisonment served consecutively to the original custodial sentence. The length of the default term depends on the amount owed:

• Up to 6 months for sums under £10,000.
• Up to 5 years for sums between £10,000 and £500,000.
• Up to 7 years for sums between £500,000 and £1 million.
• Up to 14 years for sums of £1 million or more.

At the prosecution’s figure of £3.6 million, our client would have faced the highest bracket. If he could not pay, and on the evidence, he could not, the default sentence would have added many years to his existing custodial term.

It is also worth noting that the other defendants in the conspiracy were held liable for the full £3,663,003.43. Our client was the only member of the group to secure a reduction.

The Wait

A contested confiscation hearing lasting several days is an intense process. Unlike a criminal trial, there is no jury. The judge sits alone, hears evidence, examines financial documentation, and listens to legal argument before delivering a ruling.

For our client, the wait between the conclusion of evidence and the court’s decision carried enormous weight. The difference between the prosecution’s figure and the defence’s figure was not a matter of degree. It was a matter of years of additional imprisonment.

The record does not say precisely how long the court took to deliver its ruling after the hearing concluded.

How the Defence Was Built

The result did not come from a single argument. It came from a sequence of steps, each building on the last:

• Detailed review of the prosecution’s s.16 statement, The defence scrutinised the Crown’s calculation of the benefit figure, identifying the core assumption that our client’s role equated to joint liability for the full conspiracy turnover.
• Line-by-line analysis of message traffic, Communications between our client and the OCG leader were examined to identify the pattern of piecemeal payments and the absence of profit-sharing arrangements.
• Application of Sivaraman, The legal framework was built around the Court of Appeal’s clear distinction between sentencing role and confiscation benefit, providing the court with binding authority to depart from the prosecution’s figure.
• Preparation of our client’s evidence, Our client gave evidence at the hearing. His testimony was prepared to address the specific financial allegations and to explain the nature of his remuneration within the group.
• Contested advocacy over several days, Lisa Bald, leading Rory Gordon, tested the prosecution’s position through cross-examination and sustained legal argument, maintaining the distinction between role and receipt throughout.

We do not say any one step produced the outcome. The court’s ruling speaks for itself.

The Outcome

The court accepted the defence’s submissions. It determined that our client’s benefit figure was £99,372.99, not the £3,663,003.43 sought by the prosecution.

The reduction was £3,563,630.44.

The other defendants in the conspiracy remained liable for the full £3,663,003.43. Our client was the only member of the group whose benefit figure was reduced.

The record does not say what the final recoverable amount was after the available amount was assessed, or what time to pay was allowed. Those are separate stages in the confiscation process that follow the benefit determination.

“Confiscation proceedings are often treated as a formality after conviction. They are not. The difference between the prosecution’s figure and the court’s finding in this case was over £3.5 million, and that difference was achieved through detailed analysis of the evidence and a clear understanding of the law. At Stuart Miller Solicitors, we treat confiscation with the same rigour we bring to the trial itself.” Sophie Slaney, Caseworker, Stuart Miller Solicitors

Ask your solicitor to confirm in writing what was resolved and what, if anything, remains.

What to Do Now

If you are facing confiscation proceedings under POCA 2002, consider the following:

Do not assume the prosecution’s figure is correct.

The Crown’s s.16 statement is an opening position, not a final determination. It can and should be challenged where the evidence supports it.

Understand the difference between role and benefit.

A senior position in a conspiracy may justify a significant sentence. It does not automatically justify a proportionate benefit figure in confiscation. The law, as set out in Sivaraman, recognises this distinction.

Gather financial evidence early.

Bank records, communications, and any documentation showing how you were actually paid can be critical in rebutting the prosecution’s assumptions.

Seek specialist representation.

Confiscation is a technical area of law with its own procedural rules and case law. The outcome can add years to your sentence if the default provisions are triggered.

Do not ignore the criminal lifestyle assumptions.

If they apply, the burden shifts to you to prove that specific assets or expenditures are not the proceeds of crime. This requires evidence, not assertion.