With key confiscation provisions in the Crime and Policing Bill expected to commence later in 2026, criminal lawyers will be paying close attention to what is a significant recalibration of the confiscation regime. While most debate about the bill has focused heavily on protest and public order, the reforms to asset recovery under the Proceeds of Crime Act 2002 (POCA) may ultimately have the greater day-to-day impact on practitioners.
For those who regularly deal with confiscation proceedings, the starting point is familiar – the current regime does not work as well as it should. There is a well-established gap between the value of confiscation orders made and the sums actually recovered. In my experience, that is not simply an enforcement issue; it is a consequence of how those orders are constructed.
Too often, confiscation orders are based on benefit figures that bear little resemblance to reality. If an order is set at a level that a defendant cannot realistically meet, there is little incentive to engage with the process. As such, outstanding debt accumulates, enforcement becomes more difficult, and the system’s credibility is undermined.
The Law Commission recognised these problems. Its review of the confiscation regime identified complexity, delay and unrealistic benefit calculations as central weaknesses. Importantly, it pointed towards a more pragmatic approach – one that prioritises enforceability over theoretical recovery.
The reforms coming into force appear to adopt parts of this thinking. There is a clear intention to improve the efficiency of confiscation proceedings and to strengthen the state’s ability to recover criminal assets. Measures aimed at better enforcement, including the ability to pursue further assets post-order and to increase the sums returned to victims, are, in principle, welcome.
However, the bill does not simply reform the regime – it also expands it.
From a practitioner’s perspective, this is where the difficulty lies. Strengthening enforcement without addressing the underlying issues in how benefits are assessed risks compounding the existing problem. If the system continues to produce inflated figures, then increasing the tools available to enforce those figures will not, in themselves, resolve the gap between what is ordered and what is paid.
The question of ‘criminal benefit’ remains central. Under POCA, courts are required in certain cases to apply statutory assumptions, attributing assets and expenditure to criminal conduct unless the defendant can prove otherwise. In practice, these assumptions can be far-reaching. They often require defendants to account for financial activity going back years, sometimes in circumstances where records are incomplete or simply unavailable.
In complex cases, particularly those involving historical financial arrangements, this creates a significant evidential burden. It is not uncommon for defendants to be asked to reconstruct financial histories in detail, within relatively short timeframes. This can be challenging in any circumstances; it becomes considerably more so where the defendant is in custody.
This is a point that has not been expressly addressed by the bill. You can impose procedural timetables and require responses by fixed dates. But if a defendant does not have proper access to legal advice (given the turmoil in prisons, with visits being booked weeks in advance), documents or research tools, those deadlines are of limited practical value. In those circumstances, the process risks becoming unfair.
The commission acknowledged these issues but did not fully resolve them. The forthcoming reforms do not appear to do so either.
There is also a broader question about the direction of travel. Confiscation has always sat somewhere between punishment and recovery. In principle, it is about depriving individuals of the benefit of criminal conduct. In practice, however, it has at times operated in a way that prioritises the calculation of benefit over the realistic recovery of assets.
A further development under the new regime is access to restrained assets to fund legal representation. Defendants have historically struggled to meet legal costs where assets are restrained, often limiting effective participation in proceedings. Any reform that clarifies or expands access to such funds may improve fairness. However, its impact will depend on consistent and practical application in complex cases.
If the reforms due to come into force in June are to be effective, they must address that imbalance. A system that produces realistic orders is far more likely to achieve meaningful recovery.
That is not to say that the objectives behind the bill are misplaced. There is a clear public interest in ensuring that those who benefit from crime do not retain those proceeds. Improving enforcement and supporting compensation to victims are legitimate aims. However, the difficulty lies in how those aims are pursued.
From a practical perspective, the success of these reforms will depend less on the expansion of powers and more on how the courts approach the assessment of benefit. If there is a genuine shift towards proportionality and realism, then the regime may become more effective. If not, there is a real risk that the changes will increase the scope of confiscation without improving its outcomes.
As the implementation date approaches, practitioners should be preparing for a regime that is both more assertive and potentially more complex. The challenge will be to ensure that, in seeking to strengthen asset recovery, the system does not move further away from fairness and practicality.
Ultimately, confiscation only works if it produces orders that can be enforced. The question is whether these reforms will address it, or simply extend a system that continues to struggle with it.
Amjid Jabbar is a partner at Stokoe Partnership Solicitors, London
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