Enforcement Receivers, Mortgage Consolidation Clauses and Finality of Third‑Party Interests in Confiscation Proceedings: Commentary on R v Dilenardo & Anor [2025] EWCA Crim 1672

Enforcement Receivers, Mortgage Consolidation Clauses and Finality of Third‑Party Interests in Confiscation Proceedings: Commentary on R v Dilenardo & Anor [2025] EWCA Crim 1672

1. Introduction

This commentary examines the decision of the Court of Appeal (Criminal Division) in R v Dilenardo & Anor [2025] EWCA Crim 1672, a case arising at the enforcement stage of confiscation proceedings under the Proceeds of Crime Act 2002 (“POCA”).

The First Applicant, Peter (Adrian) Dilenardo, was an independent financial adviser convicted in 2019 of serious fraud and associated offences, and made subject to a substantial confiscation order in 2021. The Second Applicant, Nicola Dilenardo, is his wife and asserted interests in the matrimonial home, 5 St Chads Grove, Headingley, which had been treated as wholly his “realisable property” for POCA purposes.

By 2024 a relatively modest balance remained unpaid on the confiscation order, but the First Applicant had persistently resisted realisation of his assets, culminating in his imprisonment in default. The Crown Prosecution Service (“CPS”) applied to the Crown Court under s.50 POCA for the appointment of an enforcement receiver over 5 St Chads Grove. His Honour Judge Clark granted that order on 24 October 2025.

The Applicants sought leave from the Court of Appeal to challenge that enforcement receiver order, and also sought to adduce fresh evidence under s.23 Criminal Appeal Act 1968 (“CAA 1968”). They advanced a wide-ranging set of grounds, including:

  • Alleged catastrophic failures of legal representation and an unfair hearing;
  • Arguments based on mortgage “Right to Consolidate” clauses and alleged “double recovery” contrary to R v Waya;
  • Challenges to the Crown Court’s refusal to adjourn pending a Financial Ombudsman investigation and a CCRC review;
  • Complaints about failure to recognise the Second Applicant’s asserted beneficial and tenant‑like interests;
  • Arguments about proportionality under Article 1 of Protocol 1 (“A1P1”) ECHR; and
  • Reliance on fresh evidence (mental health, probation risk assessments, purported alternative assets and offers).

The Court of Appeal (Mrs Justice Thornton) refused leave to appeal, refused to admit the proposed fresh evidence, and declined related applications for an extension of time to vacate the property and for certification of a point of law of general public importance.

Although the appeal was procedurally disposed of at the leave stage, the judgment contains substantial reasoning of general relevance to POCA enforcement, especially regarding:

  • the scope and exercise of the s.50 POCA discretion to appoint receivers;
  • the finality of s.10A POCA determinations of third‑party/property interests;
  • the irrelevance, in principle, of pending Financial Ombudsman and CCRC proceedings to POCA enforcement;
  • the interaction between confiscation enforcement, mortgage “Right to Consolidate” clauses, and claims of double recovery; and
  • the approach to proportionality and A1P1 at the enforcement stage.

2. Summary of the Judgment

2.1 Factual and procedural background

The key factual background can be summarised as follows:

  • 2015 – restraint order. A without‑notice restraint order under s.41 POCA was made against the First Applicant on 13 August 2015, covering his realisable property, including 5 St Chads Grove.
  • 2019 – conviction and sentence. On 30 May 2019, after a nine‑week trial in Leeds Crown Court, the First Applicant was convicted of:
    • Fraud (s.1 Fraud Act 2006);
    • Making/supplying articles for use in frauds (s.7(1) Fraud Act 2006);
    • Contravening the general prohibition (s.23(1) Financial Services and Markets Act 2000); and
    • Perverting the course of justice (common law).
    He was sentenced to 10 years and 3 months’ imprisonment and disqualified as a company director for 9 years.
  • 2021 – confiscation order. A confiscation order under s.6 POCA was made on 9 September 2021 (varied 25 October 2021):
    • Benefit figure: £1,197,552 (criminal lifestyle).
    • Available amount: £514,163, to be paid as compensation to victims.
    • Schedule of realisable assets included approximately 17 properties, including 5 St Chads Grove.
    • The order was made by consent among all parties, including the Second Applicant.
  • Time to pay and default. Time to pay was initially three months, extended by another three to 9 March 2022, with a default term of 5 years’ imprisonment. The First Applicant did not satisfy the order and was ultimately imprisoned in default.
  • 2023 – appeals on conviction/sentence/confiscation dismissed. His applications for leave to appeal conviction, sentence and the confiscation order were refused in R v Peter Adrian Dilenardo [2023] EWCA Crim 517.
  • 2024 – outstanding sum. By 3 December 2024, £51,880.31 remained outstanding, plus accrued interest of £40,923.49 (total c. £92,803).
  • 2025 – s.50 POCA application. The CPS applied for an enforcement receiver over 5 St Chads Grove. Evidence from a financial investigator detailed extensive but frustrated efforts to encourage voluntary realisation of assets and the strategic use of rental income in breach of the restraint order to sustain family properties rather than pay the confiscation order.

His Honour Judge Clark granted the s.50 application on 24 October 2025, ordering the appointment of a receiver and requiring delivery of vacant possession within two months. The Applicants then sought to challenge that order in the Court of Appeal.

2.2 Issues before the Court of Appeal

The Court addressed a broad array of issues, which it grouped thematically:

  1. Whether there had been procedural unfairness or “catastrophic” failures in representation at the Crown Court s.50 hearing.
  2. Whether the receivership order was an ultra vires attempt to confiscate the Second Applicant’s property, including her alleged tenant rights and renovation expenditure.
  3. Whether the Crown Court had misunderstood, or acted inconsistently with, mortgage “Right to Consolidate” clauses, and whether enforcement would cause double recovery contrary to R v Waya.
  4. Whether the order should have been adjourned or refused pending a Financial Ombudsman investigation and a Criminal Cases Review Commission (“CCRC”) review of the convictions (in light of R v Hayes; R v Palombo [2025] UKSC 29).
  5. Whether the judge failed to apply the A1P1 proportionality test and to consider less intrusive means of enforcement, including alternative properties and payment plans.
  6. Whether the Crown Court erred in refusing to recognise alleged tenant improvements and a tenant’s offer to buy the property.
  7. Whether fresh evidence (mortgage material, Ombudsman correspondence, CCRC material, mental health/probation evidence, and evidence about other properties) should be admitted and would have made a difference.

2.3 Outcome

The Court of Appeal:

  • Refused leave to appeal against the s.50 enforcement receiver order;
  • Refused to admit the proffered fresh evidence under s.23 CAA 1968;
  • Refused an extension of time for the Second Applicant to vacate the property; and
  • Refused to certify any point of law of general public importance and refused permission to appeal to the Supreme Court, explaining that certification is impossible where leave to appeal has itself been refused (R v Hussain, Fiaz [2023] EWCA Crim 1100).

In doing so, the Court re‑affirmed, and significantly clarified, several important aspects of POCA enforcement:

  • The discretionary but strongly pro‑enforcement nature of s.50 POCA once statutory preconditions are met;
  • The finality of POCA s.10A determinations of interests in property, which cannot be revisited at enforcement or via a s.23 POCA variation application;
  • The limited relevance
  • The approach to A1P1 proportionality at the enforcement stage; and
  • The strict approach to fresh evidence on appeal in confiscation enforcement cases.

3. Key Legal Framework

3.1 Proceeds of Crime Act 2002

  • Section 6 – empowers the Crown Court to make confiscation orders following conviction, assessing the defendant’s “benefit” and the “available amount”.
  • Section 10A – governs determinations of the extent of the defendant’s interest in particular property, including situations where third parties (e.g. spouses) assert competing interests. Crucially, such determinations are intended to be final.
  • Section 23 POCA – provides a mechanism for varying a confiscation order if the defendant’s available amount has changed, but it does not permit re‑litigation of findings made at the confiscation hearing.
  • Section 41 – permits restraint orders to freeze assets pending confiscation proceedings.
  • Section 50 – central to this case:

    “(1) This section applies if—

    (a) a confiscation order is made,

    (b) it is not satisfied, and

    (c) it is not subject to appeal.

    (2) On the application of the prosecutor the Crown Court may by order appoint a receiver in respect of realisable property.”

  • Section 69 – sets out how POCA powers (including s.50) must be exercised:
    • The court’s powers must be exercised with a view to making the value of realisable property available to satisfy the confiscation order (s.69(2)).
    • Subject to that, the powers must be exercised with a view to allowing persons other than the defendant to retain or recover the value of their interests (s.69(3)(a)).

3.2 Criminal Appeal Act 1968 – Fresh Evidence

Section 23 CAA 1968 governs the reception of fresh evidence on appeal. The Court may receive evidence if it is capable of belief and, most importantly, if it appears to the court that the evidence might afford a ground for allowing the appeal. Here, the Court concluded that none of the proposed material met that standard.

3.3 ECHR – Articles 6 and A1P1

  • Article 6 guarantees a fair trial.
  • Article 1 of Protocol 1 (A1P1) allows deprivation of possessions “in the public interest and subject to the conditions provided by law”, requiring a fair balance between the rights of the individual and the public interest in, here, removing the proceeds of crime.

The Court emphasised (para 54) that the overarching aim of POCA is to ensure that crime does not pay and that criminals cannot retain the proceeds of their offending, citing R v Ahmad [2014] UKSC 36.

4. Precedents and Authorities Cited

4.1 Gokal v Serious Fraud Office [2001] EWCA Civ 368

Gokal, decided under the predecessor regime (Criminal Justice Act 1988, s.83), was relied upon to make a crucial point about the function and limits of post‑order variation:

  • Applications to vary a confiscation order (under what is now s.23 POCA) cannot be used to “go behind” findings made at the original confiscation hearing concerning the defendant’s benefit or the extent of his realisable assets.
  • Those determinations can only be challenged by appeal. Once the appeal route has been exhausted or refused, they are final.

Mrs Justice Thornton applied that principle (para 37) to hold that the First Applicant’s attempts, via a s.23 POCA variation application, to re‑litigate his realisable assets and beneficial interests were impermissible.

4.2 R v Soneji [2006] EWCA Crim 1125

The Court cited the Court of Appeal’s decision in Soneji (post‑House of Lords), specifically para (10), to highlight that:

  • The obligation to pay a confiscation order remains in force from the date it is imposed.
  • “The clock does not stop” simply because an appeal (or, by analogy, an ECHR petition) is pending, unless there is a judicial stay.

In the present case, the same approach was applied to:

  • a CCRC application (which is not an appeal and does not of itself stay enforcement); and
  • a Financial Ombudsman complaint about a mortgage company’s conduct.

Neither process suspended the running of time under the confiscation order or prevented an enforcement receiver being appointed under s.50 POCA.

4.3 R v Ahmad [2014] UKSC 36

Ahmad is cited (para 54) for a key statement of principle about the aims of POCA:

“The overall aim of the Proceeds of Crime Act is to recover assets acquired through criminal activity, both because it is wrong for criminals to retain the proceeds of crime and in order to show that crime does not pay. Practicality involves ensuring that, so far as is consistent with the wording of the statute and other legal principles, the recovery process … is as simple, as predictable, and as effective as possible.”

This underpins the Court’s approach to:

  • interpreting and applying s.50 POCA as a robust enforcement tool once the statutory conditions are satisfied;
  • rejecting attempts to complicate or delay enforcement via collateral civil disputes or complaints; and
  • framing A1P1 proportionality in a way that gives substantial weight to the public interest in compensating victims and depriving offenders of criminal proceeds.

4.4 R v Waya [2012] UKSC 51 and proportionality

Though not analysed in depth in the judgment (it is mainly relied upon by the Applicants), Waya is central to their arguments on double recovery and proportionality under A1P1. Waya stands for the proposition that:

  • Confiscation orders must be proportionate to the legitimate aim of deprivation of criminal proceeds;
  • Confiscation that produces double recovery (e.g. the defendant paying both the lender and the confiscation amount in respect of the same value) may be disproportionate and must be adjusted.

The Court of Appeal in Dilenardo accepted the general principle but found, factually, that:

  • There would be no double recovery because the mortgagee (Topaz Mortgages) had positively indicated (by statement of truth) that it would waive its Right to Consolidate so that sale proceeds from 5 St Chads Grove would:
    • discharge its mortgage on that property; and
    • be applied, to the extent of the outstanding figure, to satisfy the confiscation order.
  • The First Applicant would not continue to owe the £52,000 to the lender; the lender’s undertaking defeated the double‑recovery complaint (paras 50–51).

4.5 R v Hussain, Fiaz [2023] EWCA Crim 1100

The Court relied on Hussain to clarify that it has no power to certify a point of law of general public importance under the Administration of Justice Act 1960 where it is refusing leave to appeal. Certification is possible only where leave has been granted and the Court is giving a decision on an appeal (para 75).

4.6 Other authorities

  • R v Peter Adrian Dilenardo [2023] EWCA Crim 517 – the earlier Court of Appeal judgment refusing the First Applicant’s appeals against conviction, sentence and confiscation, and rejecting previous complaints about legal representation.
  • R v Hayes; R v Palombo [2025] UKSC 29 – invoked by the First Applicant in support of his CCRC referral (arguing that his conviction should be revisited). The present Court held that such a referral did not affect the enforceability of the confiscation order.

5. The Court’s Legal Reasoning

5.1 Jurisdiction and discretion under s.50 POCA

The Court first confirmed that the jurisdictional preconditions in s.50(1) POCA were “plainly” met (paras 35–39):

  • A confiscation order had been made.
  • It remained unsatisfied (c. £92,803 outstanding).
  • It was not subject to appeal: earlier attempts to appeal the order had been dismissed in 2023; later CCRC activity did not count as an “appeal”.

Once those conditions are satisfied, the court may appoint a receiver. The Court emphasised that:

  • The appointment of an enforcement receiver is discretionary, not automatic; and
  • The discretion must be exercised “judicially and in accordance with the provisions of s.69 POCA” (para 39).

In practical terms, this meant:

  • Asking whether there was any realistic prospect that the First Applicant would voluntarily discharge the order; and
  • Considering whether there was any less intrusive means of securing payment.

The Court upheld Judge Clark’s conclusion that:

  • The First Applicant had been given multiple opportunities over several years to realise his assets voluntarily, including express court orders directing him to market 5 St Chads Grove, which he ignored; and
  • His track record (up to and including serving a default sentence) showed he had no genuine intention to comply and no credible alternative proposals (paras 33–36, 55–56).

Against that background, appointing a receiver over the only property with sufficient equity was a plainly proper exercise of the s.50 discretion.

5.2 Finality of s.10A determinations and third‑party interests

A core issue was the Second Applicant’s contention that the order amounted to an ultra vires confiscation of her property, including tenant‑like rights, renovation expenditure and alleged beneficial interests.

The Court rejected this argument squarely, emphasising:

  • The Second Applicant had been a party to the 2021 confiscation proceedings and to the s.10A determination about beneficial interests in the property.
  • That determination, reached by agreement, treated 5 St Chads Grove as belonging absolutely to the First Applicant.
  • The Crown Court judge in 2025 was not conducting an appeal against the confiscation order and could not revisit the accuracy of the s.10A decision (para 47).
  • Any arguments about the Second Applicant’s alleged interest, including renovation costs, had already been raised and rejected during the confiscation process.

In other words:

Section 10A determinations are final and binding for the purposes of subsequent enforcement. They cannot be re‑opened via a s.50 application, a s.23 POCA variation application, or by characterising new assertions as tenant or equitable interests.

This has significant practical consequences for third parties:

  • Spouses or other alleged co‑owners must take the opportunity to assert and prove their interests during the confiscation proceedings.
  • If they consent to, or lose, a s.10A determination that attributes full ownership to the defendant, they will struggle to resist enforcement on later claims of equitable or tenant‑like interests.

5.3 Right to Consolidate clauses and alleged double recovery

The Applicants argued that certain mortgages over the First Applicant’s property portfolio contained “Right to Consolidate” clauses, enabling the lender to treat multiple loans as secured across multiple properties. They asserted that:

  • Any equity realised on sale of 5 St Chads Grove “belonged” to the lender, not to the First Applicant, because of consolidation rights; and
  • Appointing a receiver risked double recovery – the First Applicant would, they said, still owe £52,000 to the lender after the property was sold and the confiscation enforced.

The Court decisively rejected these contentions (paras 48–52):

  • A representative of the mortgage company (Topaz Mortgages) had provided evidence, with a statement of truth, that it would waive its Right to Consolidate in relation to this property and direct sale proceeds so as to:
    • discharge the mortgage on 5 St Chads Grove; and
    • apply the remaining equity to satisfy the outstanding confiscation order and associated costs.
  • This meant:
    • The relevant equity was indeed the First Applicant’s realisable property for POCA purposes; and
    • There would be no double recovery: the First Applicant would not remain indebted to the lender for the same £52,000 while also paying it via the confiscation route (para 51).

The Court had also been shown a later, provisional decision of the Financial Ombudsman but held it was immaterial (para 52). The Ombudsman was looking at the quality of the lender’s service and complaint handling; it did not undermine the lender’s clear statement of how it would apply sale proceeds in this specific context.

In effect, the Court treated the lender’s formal waiver and agreement as dispositive of the “double recovery” concern. The First Applicant could not rely on the hypothetical or alternative application of the Right to Consolidate clause in other properties or in different scenarios to defeat a concrete, sworn undertaking given to the court in this case.

5.4 Effect of Ombudsman and CCRC proceedings on enforcement

Another important theme was the attempt to suspend or undermine enforcement on the basis of:

  • a pending Financial Ombudsman investigation into the mortgage lender; and
  • a pending CCRC review of the First Applicant’s convictions, said to be in the light of R v Hayes; R v Palombo [2025] UKSC 29.

The Court held:

  • Neither process constituted an “appeal” for s.50(1) purposes.
  • Neither process had any automatic suspensive effect on the enforceability of the confiscation order.
  • Consistently with Soneji, the obligation to pay and the timetable for payment remained in place unless and until a court ordered otherwise (para 38).

The judge at first instance had refused an adjournment based on these pending proceedings, and the Court of Appeal upheld that refusal as an entirely proper exercise of discretion (para 22).

5.5 Proportionality under A1P1 and the outcome‑focused approach

The Applicants argued that the judge had failed to apply the A1P1 proportionality test required by Waya and Soneji, and that enforcement through the sale of 5 St Chads Grove was excessive and unfair, particularly given the Second Applicant’s occupation and alleged mental health concerns.

The Court responded in several steps (paras 53–60):

  1. Convention rights recognised. The Court accepted that:
    • The First Applicant was entitled to a fair trial under Article 6; and
    • Both Applicants were protected by A1P1.
  2. Public interest in confiscation. The Court stressed, adopting Ahmad, that POCA is designed to:
    • strip criminals of the proceeds of crime; and
    • demonstrate that “crime does not pay”.
    That public interest carries considerable weight in the proportionality balance.
  3. Discretion actually exercised. The Court rejected any suggestion that the judge had treated s.50 as automatic, noting he:
    • considered whether the First Applicant might yet pay voluntarily (he would not);
    • considered whether any alternative enforcement mechanism existed (none was realistically put forward);
    • considered the Second Applicant’s position, including her alleged tenancy; and
    • evaluated the history of non‑compliance and default imprisonment.
  4. Outcome‑based proportionality. Crucially, the Court stated (para 58) that what matters for A1P1 is not whether the judge explicitly cited the Convention or used proportionality language, but whether “the outcome is proportionate.” On that question the Court had “no doubt” the outcome was proportionate.
  5. Balancing factors. On the facts:
    • The property had been under restraint since 2015 and scheduled as a realisable asset since 2021.
    • The Second Applicant chose to move into it knowing its status and having other housing options (including property in her sole name) (paras 57–58, 74).
    • The First Applicant had gone to prison rather than pay and had persistently frustrated enforcement.
    • The victims of his fraud remained uncompensated for years after the confiscation order’s deadline.
    Against that background, sale of the property by a receiver to satisfy the outstanding amount and interest was fully justified.

This analysis confirms a high threshold for A1P1 challenges at the enforcement stage where a confiscation order has already been found lawful and proportionate.

5.6 Alleged unfairness and failures of representation

The Applicants complained that:

  • Counsel at the Crown Court hearing was unprepared and ineffective;
  • Their solicitor was absent; and
  • Certain health and probation evidence was not put before the judge.

The Court rejected these complaints (paras 41–44, 61–63):

  • The First Applicant was in fact represented by counsel at the s.50 hearing; the Crown Court judge, best placed to assess the quality of representation, had raised no concerns.
  • There was a pattern of the First Applicant criticising successive legal teams, already noted (and rejected) in his 2023 appeal against conviction and confiscation.
  • Even if some material (e.g. about mental health or probation assessments) was omitted, the judge could not be faulted for failing to consider evidence that was not before him.
  • The Court therefore treated this material as proposed fresh evidence and considered it under s.23 CAA 1968.

Having done so, the Court found that none of the omitted material – a letter placing him on a waiting list for EMDR therapy, a probation letter about potential disruption, and various complaints about representation – could realistically affect the proportionality assessment or the decision to appoint a receiver (paras 65–66, 69–70).

5.7 Fresh evidence and alternative assets

The Applicants sought to rely on various items of fresh evidence:

  • Further material about the mortgage Right to Consolidate history and lender contradictions;
  • The provisional Financial Ombudsman decision;
  • The CCRC review and references to Hayes; Palombo;
  • Mental health and probation documentation;
  • Emails suggesting that Law of Property Act receivers had been appointed over another property (23 The Village Street) which, they argued, could satisfy the outstanding amount more quickly; and
  • Complaints and documents concerning alleged misconduct by previous lawyers.

The Court concluded (paras 63–70) that, taken at their highest, none of this evidence:

  • undermined the lender’s sworn evidence about using 5 St Chads Grove’s sale proceeds to satisfy the confiscation order;
  • undermined the Crown Court’s assessment of voluntariness, alternatives or proportionality; or
  • demonstrated a realistic prospect that another property, allegedly subject to LPA receivership, could reliably and promptly generate the outstanding funds (the CPS understood it to be in negative equity).

Accordingly, applying s.23 CAA 1968, the Court declined to admit the fresh evidence as it did not “appear … to afford any ground for allowing the appeal” (para 70).

5.8 Extension of time to vacate and certification to the Supreme Court

The Second Applicant sought an extension of time until 30 April 2026 to vacate 5 St Chads Grove, citing her efforts to purchase alternative accommodation. The Court refused (paras 73–74), emphasising:

  • The property had been restrained since 2015 and identified as a realisable asset since 2021;
  • The Second Applicant was well aware of its status when she chose to move in;
  • She had, and still had, other housing options; and
  • Victims had already waited several years for compensation.

On certification, the Court, following Hussain, Fiaz, explained that it had no power to certify a point of law of general public importance where it was refusing leave to appeal (para 75). Thus, both certification and permission to appeal to the Supreme Court were refused.

6. Impact and Significance

6.1 Confirmation of a robust enforcement stance under s.50 POCA

The judgment consolidates a clear message: once a confiscation order is final, and is unsatisfied, the Crown Court:

  • Will not hesitate to appoint enforcement receivers if voluntary compliance is lacking; and
  • Will treat complex or collateral disputes (e.g. with lenders, Ombudsman complaints, CCRC referrals) as irrelevant unless and until they directly alter the enforceability of the order via a court decision.

For prosecutors, the case reinforces the importance of:

  • Obtaining clear, sworn evidence from mortgagees or other third parties about the application of sale proceeds; and
  • Showing a documented history of attempting to secure voluntary realisation, thereby justifying the use of receivership as a last resort.

6.2 Finality of s.10A determinations and third‑party rights

Dilenardo provides a pointed reminder that:

  • Third parties must assert their interests fully and in good time during confiscation proceedings.
  • Once a s.10A determination of beneficial ownership is made – especially by consent – it is effectively unassailable at the enforcement stage.
  • Post‑order devices (such as creating a low‑rent tenancy 18 months after confiscation, or carrying out renovations) will be viewed with scepticism, and will not readily generate new enforceable interests capable of trumping confiscation enforcement.

This promotes certainty and prevents defendants and associates from engineering new claims to frustrate realisation.

6.3 Mortgage consolidation clauses and POCA enforcement

The Court’s handling of the “Right to Consolidate” issue is particularly significant:

  • It confirms that, in principle, such clauses do not prevent a property being treated as the defendant’s realisable asset for POCA purposes.
  • If a lender is prepared to waive or modify its consolidation rights in a particular case, so as to allow sale proceeds to satisfy a confiscation order, the Court will give that agreement decisive weight.
  • Defendants cannot rely on hypothetical or broader consolidation practices to manufacture a double recovery objection once a clear, case‑specific arrangement has been made and evidenced.

In practice, this encourages collaborative arrangements between prosecutors and lenders to direct equity towards satisfying confiscation orders and compensating victims.

6.4 Proportionality at the enforcement stage

The Court’s approach to A1P1 is notable for being outcome‑focused rather than formulaic:

  • It is not essential for the Crown Court to recite Article 6 and A1P1 or to conduct a granular proportionality analysis in writing.
  • What matters is whether the substance of the decision – in context, and bearing in mind the whole history of the case – is compatible with a fair balance between the individual’s rights and the public interest.

In circumstances where:

  • the confiscation order itself was found lawful and proportionate on appeal;
  • the defendant has had years to pay, has not done so, and has served a default sentence;
  • the property has long been known to all concerned as a realisable asset;
  • the victims remain uncompensated; and
  • alternative housing options for the spouse exist, including in her own name;

the Court found that enforcement by sale with a receiver is firmly within the margin of appreciation allowed to States in A1P1 terms.

6.5 Fresh evidence and criticism of representation

The rigorous application of s.23 CAA 1968 underscores that:

  • Not every omission or alleged oversight by counsel at first instance justifies reopening the case;
  • To be admitted, fresh evidence must realistically bear on the outcome – it is not enough that it is relevant or that the defendant wishes it had been put forward earlier;
  • Persistent, unparticularised allegations of poor representation – especially from a defendant with a history of replacing and criticising legal teams – are unlikely to carry much weight without clear, objective support.

7. Complex Concepts Explained

7.1 Confiscation orders: benefit vs available amount

  • Benefit figure: the total value of property obtained by the defendant from his criminal conduct. In this case, approx. £1.197m.
  • Available amount: the value of assets actually realisable from the defendant at the time of the order, here c. £514k.
  • The confiscation order is normally made for the lower of those figures.

The order is made against the person, not the assets: the defendant owes a sum of money and is free in principle to choose how to pay it, subject to restraint and enforcement measures.

7.2 Restraint orders vs enforcement receivers

  • Restraint order (s.41 POCA): freezes assets to prevent dissipation while investigations and confiscation proceedings are ongoing. The defendant usually retains control, but cannot deal with the property.
  • Enforcement receiver (s.50 POCA): once a confiscation order is made and unpaid, the court can appoint a receiver with powers under s.69 POCA to:
    • take possession of the defendant’s realisable property;
    • sell or otherwise realise it; and
    • apply proceeds towards satisfying the confiscation order.

The transition from restraint to receivership marks a shift from safeguarding assets to actively realising them.

7.3 Section 10A determinations

Section 10A POCA deals with how the court determines the extent of the defendant’s interest in property when third parties may also claim interests. It is designed to:

  • Ensure that confiscation orders do not bite on property truly belonging to others; and
  • Provide finality so that property disputes are resolved once, not repeatedly at enforcement stages.

In Dilenardo, the Second Applicant had engaged with the process in 2021 and consented to a s.10A determination treating 5 St Chads Grove as wholly the First Applicant’s. That determination significantly constrained her later ability to resist a receivership order by invoking new or re‑characterised interests.

7.4 Right to Consolidate clauses in mortgages

A “Right to Consolidate” clause typically allows a lender to treat multiple mortgages (on different properties) as a single pool of indebtedness, so that:

  • Proceeds from the sale of any one property can be used to reduce debts across the portfolio; and
  • Equity that might appear to exist on one property is, in substance, absorbed by shortfalls on others.

In POCA enforcement, this can complicate the question “how much equity is really the defendant’s?”. In Dilenardo:

  • The lender’s express waiver of its consolidation right in relation to 5 St Chads Grove resolved the issue – the equity above the mortgage debt on that property was treated as the defendant’s realisable property.
  • The Court did not need to rule on broader, more contentious questions about how consolidation interacts with POCA in more complex or contested scenarios.

7.5 Double recovery

“Double recovery” in confiscation arises where enforcing a POCA order would:

  • require the defendant to pay an amount to the State; and
  • the same value is (or has already been) extracted from him via some other enforceable claim (e.g. a civil suit or mortgage enforcement),

such that the defendant effectively pays twice in respect of the same benefit. Waya established that this can be disproportionate under A1P1 and must be avoided.

In Dilenardo, the double recovery concern was neutralised because:

  • The lender’s waiver ensured that the same equity could not both satisfy the mortgage and leave the defendant still liable for that sum – it would be applied in a way that settled both liabilities as far as possible.

7.6 CCRC and Financial Ombudsman

  • CCRC: an independent body that investigates potential miscarriages of justice and may refer cases back to the Court of Appeal. A referral can ultimately lead to convictions being quashed, but until that happens, it does not alter the enforceability of a confiscation order.
  • Financial Ombudsman Service: adjudicates complaints between consumers and financial firms, including lenders. Its decisions may lead to redress or changes in account balances, but:
    • They do not themselves vary confiscation orders; and
    • Pending Ombudsman complaints do not stay POCA enforcement.

8. Conclusion

R v Dilenardo & Anor [2025] EWCA Crim 1672 is an important enforcement‑stage decision in the POCA jurisprudence. While the Court of Appeal ultimately refused leave to appeal, its reasoning adds clarity on several key points:

  • Once a confiscation order is final, unsatisfied, and not subject to appeal, s.50 POCA provides a robust and flexible mechanism for realising assets by receivership, to be used where voluntary compliance has failed.
  • Section 10A determinations are final: third‑party ownership issues must be resolved at the confiscation stage, not re‑litigated during enforcement. Spouses who participate and consent are bound.
  • Collateral proceedings – in the CCRC, the Financial Ombudsman, or elsewhere – do not suspend the obligation to satisfy a confiscation order, absent a specific judicial stay.
  • Mortgage “Right to Consolidate” clauses do not, in themselves, defeat enforcement: where a lender waives or tailors its rights to facilitate confiscation, complaints of double recovery are unlikely to succeed.
  • The Court adopts an outcome‑based approach to A1P1 proportionality at the enforcement stage: it looks holistically at the history of the case, the defendant’s conduct, the victims’ position and alternative options before deciding whether a receivership order strikes a fair balance.
  • Fresh evidence and criticisms of representation will be scrutinised rigorously under s.23 CAA 1968, and admitted only where they genuinely appear capable of changing the outcome.

Taken together, these points reaffirm the central message of the POCA regime, echoed in Ahmad and reflected throughout this judgment: crime must not pay, and the enforcement of confiscation orders – including against the family home – will be pursued with considerable determination where defendants have long failed to comply and victims remain uncompensated. For practitioners, Dilenardo underscores the critical importance of addressing third‑party interests, mortgage complexities and proportionality arguments fully, and at the right procedural stage, rather than attempting to reconstruct them at the point of enforcement.

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Criminal Division)

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