‘Key Amendments to POCA 2002’ by Kat Shields and Kate Temple-Mabe

The Crime & Policing Act 2026:

Key Amendments to POCA 2002

A number of amendments to Part 2 of the Proceeds of Crime Act 2002 (POCA 2002) have come into force on 29 June 2026 by virtue of Schedule 21 of the Crime & Policing Act 2026. This article summarises a few highlights, which will have an impact on those involved in POCA confiscation proceedings.

The ‘Principal Objective’

A new section 5A has been inserted at the beginning of Part 2, which establishes a statutory ‘principal objective’ (think the ‘overriding objective’, but for POCA). The principle objective is ‘to deprive the defendant of the defendant’s benefit from criminal conduct, so far as within the defendant’s means’. Powers conferred by Part 2 must be exercised in a way that is ‘best calculated to further the principal objective’. Section 5A overrides section 2A (contribution to the reduction of crime) where the two conflict. The section applies to prosecutors, appropriate officers, investigators and receivers, as well as to the court.

Criminal lifestyle offences

A number of changes are made to the ‘criminal lifestyle’ framework. In particular:

• The court’s duty to consider whether a defendant has a criminal lifestyle is now triggered by an application from the prosecutor (see s.6(4)(a) as amended by para 2 of Schedule 21).
• Prosecutors should indicate when serving a s.16 statement whether or not a criminal lifestyle inquiry is requested (s.16(2A)). A prosecutor’s decision whether to request a criminal lifestyle inquiry should, by virtue of s.5A, be informed by the ‘principal objective’.
• The threshold for the ‘course of criminal activity’ lifestyle test in s.75(3) POCA is reduced from conviction for three offences to two offences in the relevant proceedings, and applies where a defendant has either benefitted or intended to benefit from the conduct in question (although these amendments do not apply where the conduct took place wholly or partly before 29 June 2026).
• Two environmental offences are added to Schedule 2, as is an offence under s.33A of the Sexual Offences Act 1956 (keeping a brothel).
• The new s.10(6A) requires the court, when assessing whether a required assumption would create a serious risk of injustice, to give appropriate weight to any evidence available on this point, and the defendant’s explanation, if any, as to why such evidence is unavailable.

Benefit figure / recoverable amount

A new s.9A has been inserted, relating to ‘Hidden property’. The section will apply where the court considers that the defendant’s benefit exceeds the value of their available property and any tainted gifts as a result of property having been hidden by or on behalf of the defendant. In such a case, the court must determine the value of the hidden property, taking into consideration the extent to which the excess may be explained by other circumstances. The value of the hidden property is then added to the available amount. This new provision effectively codifies a practice that has already been adopted by the courts in relation to hidden assets.

Section 76 (conduct and benefit) is amended to insert subsection (8): the court may reduce the benefit figure where a person held property temporary, with limited control, or is treated as obtaining it under s.84(3).

A new section 80A deals with the approach to mortgages that have been obtained as a result of or in connection with criminal conduct, and amendments to s.80 (value of property obtained from conduct) address the approach to property no longer held by virtue of having been sold or destroyed by court order.

It is worth pointing out that para 6 of Schedule 21 of the 2026 Act, which will among other things amend s.7(2) so that the recoverable amount reduces the benefit amount if the defendant ‘proves’ (rather than ‘shows’) or ‘the court is otherwise satisfied’ that the available amount is less, has not yet come into force. Watch this space.

Also not yet in force are several new subsections added to s.7(4) which will require the court, when calculating the defendant’s benefit, to disregard any property that has been:

• subject to an order under s.13(3)(b), (c) or (d), i.e. forfeiture and deprivation orders (subsection (za));
• restored to victims / other persons entitled to recover it (subsection (e));
• handed over to an appropriate officer (subsection (f));
• seized and not released (subsection (g)); or
• paid in compensation (subsection (h)).

When brought into force, this will be a significant change from the previous position (arrived at by judicial interpretation) whereby defendants were considered to have ‘benefitted’ from property that came into their possession regardless of whether it was thereafter seized or recovered.

Timetabling

Paragraph 14 of Schedule 21 deletes the provisions in POCA requiring the confiscation proceedings to be completed within 2 years of conviction. This will come as welcome news to practitioners dealing with routine applications to extend the POCA time limit as a result of now endemic backlogs in the Crown Courts. Under the new provisions, the court is required simply to set a timetable before the end of the sentencing hearing, which may then be revised. There is no requirement to show exceptional circumstances.

Early resolution meetings

Perhaps one of the more innovative reforms introduced by Schedule 21 is the introduction of s.6(7A), permitting a court proceeding under section 6 to decide the issues ‘in accordance with an agreement reached by the prosecutor and defendant at an EROC meeting as mentioned in section 15B(3)(a).’ An ‘EROC meeting’ is an ‘early resolution of confiscation meeting’. The court can direct that such a meeting be held, at which the prosecutor and defendant (or defendant’s legal representative) make efforts to reach an agreement on confiscation.

The court can direct an EROC by its own motion, or on application by the prosecutor (interestingly not on application by the defendant, although presumably a defendant can request that the court give consideration to directing an EROC). The court can also direct the attendance at an EROC of any person who appears to hold an interest in ‘key property’ (i.e. property that may need to be realised or used to satisfy any order).

The provisions are plainly an attempt to speed along what can become a long and protracted tail of confiscation proceedings lasting many years post-conviction. In more straightforward cases, EROCs may be a good opportunity for the sort of productive negotiation that now largely occurs at the court door, although it remains to be seen how they will work in practice.

Restraint orders

A number of proposed amendments to the POCA Restraint Order regime contained within other parts of the 2026 Act are not yet coming into force. However, practitioners should be aware that Part 9 of Schedule 21 has made a number of amendments that are now in effect:

• Section 40 is amended to add a condition for the making of a restraint order, i.e. that there must be a ‘real risk’ of dissipation if an order is not made. A new subsection (1B) sets out the factors to which the court should have regard when determining if there is a risk of dissipation.
• A new subsection 41(3A) sets out factors to which the court should have regard when making an exception for reasonable living expenses (which includes the respondent’s ‘applicable standard of living’ as defined by the new s.41(11).
• A new subsection 41(7CA) sets out factors to which the court should have regard when deciding whether a restraint order made pre-charge should be discharged because the proceeds have not been started within a reasonable time. To an extent this puts on statutory footing the case law in this area, but notably now the court must explicitly have regard to the impact of the order on the person affected.
• A new section 42A addresses the effect of a conviction on a restraint order, and sets out factors that a court should consider when making or varying an order after conviction.

Enforcement and Reconsideration

There are a number of pending changes to the system for enforcement of confiscation orders, set out in Part 8 of Schedule 21 to the 2026 Act, which are not yet in force. Among other things, those amendments will permit a court to make an enforcement plan if there are reasonable grounds to believe that a defendant will default on the order for any reason, or the court believes it is otherwise appropriate. Once in force, these changes will give the court oversight over the payment of confiscation orders – although they will also increase the Crown Court workload.

A further pending change which may increase workload is the introduction of provisional discharges of confiscation orders (ss.24A-24C). The court may discharge a confiscation order provisionally even where the court does not consider that doing so would be best calculated to further the ‘principal objective’ (s24A(5)). The factsheet accompanying the 2026 Act explains that this will allow outstanding confiscation orders to be placed in abeyance where there is no realistic prospect of recovery in the immediate term, and all enforcement steps have been exhausted. It is notable that there is no time period specified for which an order can be provisionally discharged. As there is also no time limit on applications to revoke a provisional discharge, it is unclear whether these provisions will add anything in practice to the existing Reconsideration regime.

This article was written by 7BR’s Kat Shields and Kate Temple-Mabe.

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