If, upon the sale of a defendant’s assets contained within a Confiscation Order made during the course of Confiscation Proceedings, the amount realised is less than anticipated, application can be made to the Court to vary that Order
Section 23 of the Proceeds of Crime Act 2002 (‘POCA’) replaced section 83 of the Criminal Justice Act 1988 and Amandeep Murria of Kangs Solicitors discusses the position generally.
Kangs Solicitors advises clients in relation to Confiscation Proceedings on a daily basis.
We appreciate any client seeking to vary or challenge a confiscation, restraint or cash seizure order requires immediate specialist legal advice and assistance.
For an initial no obligation consultation, please telephone our team of lawyers at any of our offices detailed below:
Position Before The Introduction Of POCA | Kangs Confiscation Solicitors
- Before 24th March 2003, an application was necessary to the High Court, for a Certificate of Adequacy under Section 83 of the Criminal Justice Act 1988.
- Whilst Section 83 still continues to apply, it is only effective in respect of a Confiscation Order made where there are offences committed before the 24th of March 2003
- Relevant general principles which apply include:
- the burden still lies with the applicant to prove, on the balance of probabilities, that the realisable property is inadequate for the payment of the amount due under the Confiscation Order.
- the realisable property and assets must all be identified at the time an application is made for the Certificate of Inadequacy. This can also include assets which were not or are not available at the time of the original Confiscation Order.
- a Section 83 application cannot be used to go behind the findings at the Hearing at which the Confiscation Order was made. The original finding can only be challenged by way of an Appeal against the original Confiscation Order.
- the Court has to be provided with details of all events since the original Order was made.
- the Court must be satisfied that the applicant’s realisable property is inadequate for the payment of any amount remaining to satisfy the Confiscation Order.
- if the Court is satisfied, a Certificate of Inadequacy is issued, giving reasons for doing so.
POCA Requirements | Kangs Financial Crime Solicitors
Under Section 23 POCA (2002) an application can be made for a Certificate of Inadequacy if:
- a Court has made a Confiscation Order.
- the Court finds that the available amount is inadequate for the payment of the amount remaining to be paid under the Confiscation Order
The Court may vary the Order by substituting the amount which it requires to be paid with such smaller amount as the Court deems appropriate.
Recent High Court Decision | Kangs Confiscation Law Solicitors
In the case of R v Ojebode  EWHC 923:
- the applicant was convicted on the 20th of April 2015 in the Crown Court at Snaresbrook in respect of obtaining money transfers by deception, evasion liability of deception and possession of an identity document with an improper intention.
- the applicant was sentenced to thirty months imprisonment.
- on the 10th January 2017 at Snaresbrook Crown Court, a Confiscation Order was made under POCA.
- the applicant subsequently paid a substantial amount off the debt but a sum in excess of £400,000 remained outstanding.
- the value of the remaining property/assets was inadequate to cover the outstanding debt.
- an application to the High Court was made for a Certificate of Inadequacy under Section 83 of the Criminal Justice Act 1988 because some of the offences took place before 24th March 2003.
- if all of the offences were committed after 24th March 2003, the appropriate procedure would have been that outlined in section 23 POCA.
In the event, the High Court issued a Certificate of Inadequacy enabling an application to be made to the Crown Court for a variation to the Confiscation Order.
How Can We Help? | Kangs National POCA Solicitors
If you are subject to a Confiscation Order and are concerned that you may not be able to meet your obligations as the result of the value of your assets being inadequate, please feel free to contact the team at Kangs Solicitors which has a wealth of experience in all aspects of POCA proceedings.
We are here to assist and happy to provide an initial no obligation consultation at our offices in London, Birmingham and Manchester or by telephone/video conferencing.