The courts have power through the Proceeds of Crime Act 2002 to confiscate your money and property in a number of situations.
The law is that a person has a ‘criminal lifestyle’ where certain types of offences or types of offending take place. The relevant drug offences that fall within this definition are: possession with intent to supply; supply (including concerned in supply); production (including concerned in production); and permitting certain activities relating to controlled drugs (section 8 Misuse of Drugs Act 1971).
You will also be found to have a criminal lifestyle where you are convicted of an offence that took place over at least six months, where you have benefited from the conduct which constitutes the offence and the benefit is at least £5000.
A criminal lifestyle may also be asserted where your offence is conduct forming part of a course of criminal activity. A course of criminal activity is proved if you are convicted of four offences at the same time (and where you have benefited from each of them) or if you are convicted separately for two such offences in the six years prior to your current conviction.
Where you are found to have a criminal lifestyle, the Court assumes that all of the property (including money) that has been transferred to you, held by you, or spent by you in the six years prior to your arrest was the proceeds of crime and therefore the whole value of this property (called ‘the recoverable amount’) can be made subject to a Confiscation Order.
You can show that these assumptions are wrong by producing evidence of the source of all the money and other assets that have passed through your hands in the last six years. Helpful evidence can include wage-slips from your employer, a copy of a tenancy contract from the lodger who pays you rent or a statement from a relative that they lent or gave you specific property and why. The Court looks at every detail, so you will want to get your own copy of your bank statements for the last six years as soon as possible so that you can have the best chance of explaining things. It is much easier to do this on bail than on remand, so if you think you might be vulnerable to such proceedings, you might want to start keeping records of your lawful income straight away.
You can also defeat the assumptions by showing that there is a serious risk of injustice if they are made, in that there would be double-counting of the same money if they were applied literally. The safeguard does not extend to arguments that you would suffer hardship by virtue of the order - the serious risk of injustice provision cannot be used to avoid a confiscation order that deprives the defendant of his home (R. v. Dore  2 Cr.App.R.(S.) 152, CA.).
The Court will value your assets as they stand at the time (minus any court fines, preferential debts, or legitimate and evidenced third-party interests). This becomes the amount that you are required to pay, or the ‘available amount’. However, where you have given property away, or sold items for less than they are worth, the Court has the power to consider such transfers as false and assume that you are still able to access the value of that property and so this value is included in the available amount.
You should be aware that if the court finds that you have benefited from criminal conduct and values the benefit as being worth a particular amount, then any assets or money you have, even if from a legitimate source, can be included in the amount you have to pay the court.
A Confiscation order must usually be paid on the date it is made, but the court can grant 6 months, or in exceptional circumstances 12 months, to pay. On making the order, the Court will fix a term of imprisonment that you will have to serve if you do not pay and, depending on the size of your available amount, this can be quite lengthy. Any sentence is served after any other sentence that you might face BUT, serving the time does not wipe out the debt and you will continue to owe and be charged interest upon this until it is paid.
Particular Criminal Conduct
If you do not have a ‘criminal lifestyle’ the Court will look to see whether you have benefited from the particular criminal conduct that has been proved or admitted in the current proceedings, including other offences that are taken into consideration (TICs). TICs can come about when a defendant who has been arrested on suspicion of an offence, and admits it to the police, is invited to confess to similar offences on the provisional understanding that the extra offences won’t be prosecuted separately. Instead they will be brought to the attention of the court when sentencing for the main offence. The court can then decide whether to take these additional offences into account, and will generally increase the sentence because of the TICs as they show that the offender has committed multiple offences, but the extra penalty will usually be less than if the offences had been prosecuted separately. It gives people the opportunity to ‘clean the slate’ so that at the end of their sentence, having admitted their offences, they can put their past behind them. This can play a role in supporting their rehabilitation.
Benefiting from criminal conduct means that you have obtained property as a result of, or in connection with, your offence. Your benefit is assessed as the value of the property you obtained (not the profit you made) and, again, property can mean anything from money to cars and houses. The amount of this benefit becomes the recoverable amount, and the procedure outlined above for life-style offences then applies.