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 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.
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:
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 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:
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.
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:
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.
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.
The result did not come from a single argument. It came from a sequence of steps, each building on the last:
We do not say any one step produced the outcome. The court’s ruling speaks for itself.
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.
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.
What is a confiscation order and when does it happen?
A confiscation order is a court order made after conviction under the Proceeds of Crime Act 2002. It requires you to pay back the amount the court determines you benefited from your criminal conduct. The proceedings take place after sentencing, in the Crown Court, before the same judge or a different judge assigned to the case. If you cannot pay the full benefit figure, the court orders you to pay your "available amount" the value of your realisable assets at that time.
What is a "benefit figure" and how is it calculated?
The benefit figure is the total value the court finds you obtained from criminal conduct under s.8 of POCA 2002. In drug trafficking cases, the court may apply statutory assumptions under s.10 that treat all your property, expenditure, and transfers over the previous six years as proceeds of crime unless you can prove otherwise. The benefit figure is not necessarily the amount you will be ordered to pay, the actual order is based on the lesser of the benefit figure and your available assets.
Does my role in the conspiracy determine my benefit figure?
Not automatically. The Court of Appeal in Sivaraman [2008] EWCA Crim 1736 made clear that the seriousness of your role at sentencing is a separate question from the financial benefit you personally received. You may have played a significant part in a criminal operation without personally obtaining a proportionate share of its proceeds. Your benefit figure should reflect what you actually received, not the total turnover of the conspiracy.
What happens if I cannot pay the confiscation order?
If you do not pay within the time allowed by the court, a default sentence is activated under s.38 of POCA 2002. This is an additional term of imprisonment served consecutively to your original sentence. The length depends on the amount: up to 6 months for sums under £10,000, up to 5 years for sums under £500,000, up to 7 years for sums under £1 million, and up to 14 years for sums of £1 million or more. You can apply to the court for a variation if your financial circumstances change.
Can the prosecution's benefit figure be challenged?
Yes. The prosecution's s.16 statement is its opening position. Your defence team serves a response under s.17 of POCA 2002, disputing specific elements of the calculation. If agreement cannot be reached, the court holds a contested hearing at which both sides present evidence and legal argument. The judge then makes a determination on the balance of probabilities, a lower standard than the criminal standard of proof used at trial.
What are the "criminal lifestyle" assumptions and when do they apply?
If you are convicted of certain offences, including drug trafficking, the court must treat you as having a "criminal lifestyle" under s.75 of POCA 2002. This triggers assumptions under s.10 that all property you have held, received, or spent in the six years before proceedings began is the proceeds of crime. The burden is on you to prove that specific items are legitimate. These assumptions can dramatically increase your benefit figure if they are not properly challenged with evidence.