In Court - POCA

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For use alongside criminal proceedings under the Trade Marks Act 1994, the Proceeds of Crime Act 2002 (POCA) is an extremely powerful weapon against counterfeiters, for offences committed after 23 March 2003.

POCA is designed to take the profit out of crime, to crack down on money laundering and to recycle confiscated criminal assets for the benefit of the community. Thanks to effective lobbying by ACG and other rights organisations while it was being drafted, IP crime is one of the ‘lifestyle offences’ so just one conviction for counterfeiting will open the door to criminal confiscation proceedings under POCA.

The Crown Prosecution Service has an excellent POCA guidance section on its website.

In these separate POCA proceedings, a counterfeiter's assets can be traced back up to six years, and will be confiscated unless they can prove that those assets are NOT the proceeds of a criminal lifestyle. These proceedings can be through the criminal or civil courts:

  • proceeds of counterfeiting can be seized whether or not the offence which triggered the procedure was trade mark related
  • civil recovery orders are obtainable without first prosecuting the offender provided that 'unlawful conduct' as defined in the Act can be proved
  • in both kinds of proceedings, the standard of proof is that of the civil courts i.e. 'on the balance of probabilities' not the criminal standard of 'beyond reasonable doubt'
  • the burden of proof is entirely on the defendant to establish that the assets traced are NOT the proceeds of criminal activity AND up to six year's worth of assets can be taken into consideration in calculating the confiscation order or civil recovery order, unless the defendant can prove otherwise.
  • law enforcement can share in the recovered assets, to cover costs
  • trading standards officers are trained as accredited Financial Investigators, able to conduct their own investigations and confiscation proceedings under POCA when also prosecuting criminal IP cases
  • the assets recovered from criminals in this way can also be taxed retrospectively

This is a brief introduction to a complex subject, but HERE are some recent cases to illustrate how POCA works in practice:

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