In view of the current turbulent and uncertain worldwide financial situation encompassing depressed property and stock markets and a potential decline in the value of assets generally, both  now and in the foreseeable future, it is clear that those subject to the obligations of  a Confiscation Order, imposed under the Proceeds Of Crime Act 2002 (‘the Act’) may encounter difficulties, unforeseen at the time of the making of such an Order, in discharging their debt.

Failure to comply with the terms of a Confiscation Order may result in a period or extended period of imprisonment as well as interest being added to the debt.  

It may be that the enforcement Court will be sympathetic when considering its enforcement options and section 23 of the Act may offer some assistance.

Section 23 POCA Applications | Kangs Confiscation Solicitors

Section 23 applies where:

  • a Court has made a Confiscation Order and
  • the defendant, prosecutor or receiver appointed to realise assets
  • applies to the Crown Court to vary the Order.

Section 9 provides that in considering an application, the Court must calculate the available amount being:

  • the total of the values of all property held by the defendant
  • minus the total amount payable in pursuance of obligations which have a priority
  • plus the value of any tainted gifts.

The Court, in making the calculation, must:

  • assume that the values of free property and any tainted gift are the value as of the date of the calculation and
  • the date of the Confiscation Order is as of the date of the calculation.
  • If the Court determines that the available amount is inadequate to pay any amount remaining under the Confiscation Order, it may vary it substituting the amount to be paid with such smaller amount as the Court believes is just.

When May an Application Fail? | Kangs POCA Solicitors

The Court may disregard any shortfall in the value of the assets which it believes:

  1. is attributable, wholly or partly, to anything done by the defendant to preserve property that is
  2. held as a tainted gift from any risk of realisation.

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 having recently dwindled then please feel free to contact the team at Kangs Solicitors which has a wealth of experience in all aspects of POCA proceedings.

The team is led by Hamraj Kang, ranked as a ‘star individual’ in Chambers UK for five consecutive years for his work in defending financial crime cases.

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.

Hamraj Kang
hkang@kangssolicitors.co.uk
07976 258171 | 020 7936 6396 | 0121 449 9888

John Veale
jveale@kangssolicitors.co.uk
020 7936 6396 0121 449 9888

Tim Thompson
tthompson@kangssolicitors.co.uk
020 7936 6396 0121 449 9888 | 0161 817 5020