Confiscation step 2: Has the defendant benefited from relevant criminal conduct?
Confiscation step 2: Has the defendant benefited from relevant criminal conduct?

The following Corporate Crime guidance note provides comprehensive and up to date legal information covering:

  • Confiscation step 2: Has the defendant benefited from relevant criminal conduct?
  • Benefit from criminal conduct
  • Obtaining in connection with criminal conduct
  • Obtaining through joint enterprise
  • Criminal lifestyle, general criminal conduct and the application of the assumptions
  • The statutory assumptions
  • Proving the property-held assumption using past conduct
  • Defeating the assumptions
  • Particular criminal conduct
  • Calculating the benefit of a fraudulently obtained mortgage

Once the court decides whether the defendant has a criminal lifestyle, it must then move to decide if they have benefited from their general criminal conduct or particular criminal conduct. For information on what constitutes a criminal lifestyle under the Proceeds of Crime Act 2002 (POCA 2002), see Practice Note: Confiscation step 1: Does the defendant have a criminal lifestyle?POCA 2002, s 6(4)

Benefit from criminal conduct

The prosecution has to prove to the civil standard (that is on the balance of probabilities) that the defendant has benefited from criminal conduct. A defendant benefits from criminal conduct if they obtain property as a result of or in connection with their criminal conduct or, if a person obtains a pecuniary advantage as a result of or in connection with criminal conduct.POCA 2002, ss 6(7), 76(4), 76(5)R v Bajwa [2011] EWCA Crim 1093, [2012] 1 All ER 348

The defendant's benefit, therefore, is the value of the percuniary advantage or the property gained as a result of or in connection with the criminal conduct.POCA 2002, ss 76(5), 76(7)

Criminal conduct is conduct that constitutes an offence in England and Wales, wherever it is committed (and see below).POCA 2002, s 76(1)

Property is all property wherever situated and includes money, real or personal property, things in action and other intangible or incorporeal property. The question whether the defendant obtained property is, in the first instance, one of fact.POCA 2002, s 84(1)

Section 84(2) provides that property is 'obtained' by a person 'if he obtains an interest in it'. The House of Lords provided guidance on this in the last of the six