POCA 2002 Structure
POCA confiscation proceedings follow conviction for a qualifying offence (including Fraud Act 2006 and Theft Act 1968 offences). The court determines the defendant's benefit from criminal conduct and makes a confiscation order for the recoverable amount - the benefit or available assets, whichever is lower.
Benefit is the total financial gain from the criminal conduct. Available assets are the assets available to satisfy the confiscation order, including tainted gifts made within six years of the offence.
Benefit Calculation
Forensic accountants quantify benefit by tracing all financial gain from the fraudulent conduct. In employee fraud cases, this includes direct theft, inflated expense reimbursements, kickbacks, and the value of assets purchased with fraud proceeds.
Where the defendant's criminal conduct constitutes a 'course of conduct', the court may make assumptions about benefit unless the defendant can disprove them on the balance of probabilities.
Available Assets Analysis
Available assets include all property held by the defendant, including property transferred as tainted gifts. Forensic accountants analyse bank accounts, property registers, company shareholdings, and other asset classes to identify what can be realised.
Hidden assets are a common issue - forensic accountants use the same tracing techniques employed in civil recovery to identify assets held in third-party names or offshore jurisdictions.
Expert Witness Role
The forensic accountant may be instructed by prosecution, defence, or as a single joint expert. The expert prepares benefit and available assets schedules, analyses contested transactions, and gives oral evidence at the confiscation hearing.
Defence experts may challenge the prosecution's benefit calculation, identify legitimate sources of wealth, and argue that assumed benefit figures are excessive.
Civil Recovery Alongside POCA
POCA confiscation benefits the Crown, not the victim employer directly. However, victim compensation orders can be made under s130 Sentencing Act 2020. Employers should pursue civil recovery in parallel to maximise total recovery from the perpetrator.
Running civil and criminal proceedings simultaneously requires careful coordination between the employer's solicitor and the forensic accountant to avoid prejudicing either track.