Section 76(8) POCA and R v Ahmad & Fields
Does the New Provision Change the Position
Does this new section have any impact on the Supreme Court’s decision in R v Ahmad & Fields [2014] UKSC 36?
By Adrian Kayne
On 29th June 2026, section 76(8) of the Proceeds of Crime Act 2002 (“POCA”) came into force. It was introduced in Schedule 21 of the Crime and Policing Act 2026 and in certain circumstances, it enables a Court proceeding under section 6 of POCA to reduce the value of benefit attributable to particular property to such amount (including zero) as the court believes is just. It is a discretionary power.
To consider this new provision in context, we should briefly remind ourselves of a few non-exhaustive sections of POCA.
When the Crown Court proceeds under section 6 of POCA, section 6(4) requires it to determine:
(a) “whether the defendant has a criminal lifestyle”
(b) “if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct” and
(c) “if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct.”
For the purposes of POCA, a defendant has a “criminal lifestyle” if “the condition” in section 75(1) is satisfied. Section 75(2) provides that:
“the condition is that the offence (or any of the offences) concerned satisfies any of these tests—
(a) it is specified in Schedule 2;
(b) it constitutes conduct forming part of a course of criminal activity;
(c) it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence.”
Section 76(4) of POCA provides that:
“a person benefits from criminal conduct if he obtains property as a result of or in connection with the criminal conduct.”
Section 76(7) provides that:
“if a person benefits from conduct his benefit is the value of the property obtained.”
Section 84 defines “property” in broad terms and section 84(2)(b) provides that property is “obtained by a person if he obtains an interest in it.”
A rigid and formulaic application of sections 76(4), (7) and 84(2)(b) has occasionally led to some defendants being saddled with substantial and, on one view, wholly disproportionate benefit figures in their POCA proceedings. Indeed, many defendants might have been, and may continue to be, deterred from pleading guilty because the draconian scheme of POCA which follows can often result in staggering benefit figures which they find difficult to comprehend.
Section 76(8) now gives the court a discretionary power in defined circumstances to mitigate and reduce the value of benefit attributable to particular property if a strict application of section 76(7) would lead to an unjust amount.
Section 76(8) provides:
“But in a case where—
(a) the person—
(i) intended to have only a limited power to control or dispose of all or part of the property,
(ii) held the property temporarily, or
(iii) is treated as obtaining the property as a result of section 84(3), and
(b) the court believes that the amount found under subsection (7) in relation to the property would produce a result that would be unjust,
the court may reduce that amount to such amount (including zero) as the court believes is just.”
This article does not deal with section 76(8)(a)(iii) and the equally new section 84(3). It is confined to sections 76(8)(a)(i), (ii) and (b) and asks if they do no more than put the courier/custodian/minor contributor established case law on a statutory footing or if they go further and allow significant participants in jointly obtained property cases to reduce their joint benefit liability?
Where multiple defendants jointly obtain property as a result of or in connection with their criminal conduct, each may be assessed for the full benefit amount; relief may come at the enforcement stage because the Crown is not permitted to double-recover the same benefit – see R v Ahmad and Fields [2014] UKSC 36.
The discrete position of ‘paid couriers, custodians and other very minor contributors to an offence’ was recognised as long ago as 2008 in R v May [2008] UKHL 28 when their Lordships held that:
“D ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. He ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject. Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers.”
The question which the Court in May left open in respect of couriers, custodians and minor contributors in money laundering cases was subsequently answered in a similar way by the Court of Appeal in R v Allpress [2009] EWCA Crim 8.
But what of other joint participants in serious crime whose precise role may not be easily discerned or accepted by the prosecution? Will they now be able to invoke section 76(8) to mitigate and seek a discretionary reduction in what would otherwise be a substantial joint benefit figure? And if so, how?
In this context it is worth reminding ourselves of what the Supreme Court said in Ahmad in relation to property obtained as a result of a joint criminal enterprise, its value and thus the calculation of a defendant’s benefit:
“46…where property is obtained as a result of a joint criminal enterprise, it will often be appropriate for a court to hold that each of the conspirators “obtained” the whole of that property…
“48. In some cases, one or more of the conspirators may be able to show that he was only involved to a limited extent, so that he did not in any way obtain the property which was obtained as a result of the crime. Examples include acting as a paid hand in the enterprise … or a latecomer to a conspiracy in which nothing was obtained after his arrival …
“49. It is clear from May … that the amount of the benefit which a defendant obtains is not affected by the amount which might be obtained by others to whom he transfers any part of it (any more than it can be affected by his payment out of the expenses of his criminal venture). However, there could be other cases where the court may be satisfied on the evidence that individual defendants obtained (ie assumed the rights of an owner over) only a specific part or share of the property which had been acquired as a result of the criminal activity…
“50. There has sometimes been a tendency to equiparate joint involvement in the crime with joint ownership of the fruits of the crime. But the fact that the defendants were jointly responsible for the crime in question does not automatically justify a conclusion that they jointly obtained the resulting property…
“51. The tendency to conclude that property is jointly obtained by criminals may also be attributable to the fact that it is often difficult to determine how the asset(s) obtained has, or have, been distributed between the defendants. Judges in confiscation proceedings should be ready to investigate and make findings as to whether there were separate obtainings. Sometimes of course this is too difficult or impossible. In many cases the court will not have before it all the conspirators for a variety of reasons… A court should never make a finding that there has been joint obtaining from convenience, or worse from laziness. Where the evidence supports a finding that the asset acquired from a crime was obtained effectively on a several basis, the judge should make it, but there are cases in which a finding of joint obtaining is the proper, indeed the only available finding, especially but not only where an inference or presumption that the defendants before the court were the only joint obtainers would be contrary to the probabilities.”
The perennial problem identified in Ahmad may make the practical application of section 76(8) much more difficult than at first appears when it comes to complex multi-handed cases, particularly when the prosecution and defence cannot agree on the role played by a defendant and the value of the property which he obtained; or, the prosecution does not accept a defendant’s bare assertion in a Basis of Plea or section 17 Response that he obtained no property or played only a limited role and was little more than a paid hand. In such cases, it seems likely that sworn evidence from a defendant seeking to rely on the new subsection may be required, although the court may also rely on other evidence, for how else might a defendant begin to show or prove, depending on where the burden of proof lies, that he intended to have only a limited power to control or dispose of all or part of the property? Or, that he only held it temporarily? How might the court go about determining what limit there was on a defendant’s power, whether it was exercised and/or whether it was in respect of all of the property or only a part of it, without clear evidence about it or from which this might reasonably be inferred?
Section 76(8) requires the Court to address these preliminary questions first before going on to consider whether the benefit figure arrived at following a strict application of section 76(7) in relation to the property would cause injustice such that it ought to be reduced to an amount which the Court considers just or to zero.
This begs the question: in multi-defendant joint obtaining cases, how might the Court arrive at a just amount when the Supreme Court in Ahmad rejected the notion that the value of jointly obtained property could be apportioned across co-defendants?
Quite how this will play out in practice in the context of joint obtaining cases remains to be seen. Might it lead to an increase in the number of defendants willing to give evidence in their confiscation proceedings on matters such as what property they did obtain, what property others obtained, how the joint enterprise or conspiracy in which they participated worked, how the wider spoils were divided, what power or control they and/or others had etc? Or, does none of this actually matter in such cases and might a Court refuse to entertain receiving such evidence because of the decision in Ahmad? Might this mean, in turn, that certain defendants, based on their perceived or believed role within a conspiracy or joint enterprise, would be precluded from invoking and relying on the new section?
Alternatively, if and when raised by a defendant who played more than a discrete minor role in a joint obtaining case, will section 76(8) now require the Court to adjudicate on that which the Supreme Court said in Ahmad the Act did not appear to require when it said this:
“In many cases it is often completely unclear how many people were involved in the crime, what their roles were, and where the money went. As a result, if the court could not proceed on the basis that the conspirators should be treated as having acquired the proceeds of the crime together, so that each of them “obtained” the “property”, it would often be impossible to decide what part of the proceeds had been “obtained” by any or all of the defendants. There is obvious cause for concern about having to inquire into the financial dealings between criminals who have together obtained property, especially given that the ringleaders are often not even before the court. It is one thing for the court to have to decide whether a defendant obtained any property, which the 2002 Act requires. It is another thing for the court to have to adjudicate on the respective shares of benefit jointly obtained, which the Act does not appear to require.” [para.56]
Time will tell
By Adrian Kayne
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