Amandeep Murria of Kangs Solicitors discusses the position where there is a reconsideration of the ‘available amount’ in confiscation proceedings.
The provisions are contained within the Proceeds of Crime Act (POCA) 2002.
It is open to the Prosecution to apply at any time for a further calculation of the available amount.
If the Court is satisfied, it may then vary the order by substituting the amount required to be paid by such amount as:
- It believes is just, but
- Does not exceed the amount found as the defendant’s benefit from his conduct
Confiscation Law | Kangs Specialist Confiscation Solicitors
Section 22 of POCA states:
1) This section applies if:
- a Court has made a confiscation order,.
- the amount required to be paid was the amount found under section 7(2), and.
- an application falling within subsection (2) applies to the Crown Court to make a new calculation of the available amount.
2) These applicants fall within this subsection:
- the Prosecutor
- the Director; .
- a receiver appointed under section 50 or 52
3) In a case where this section applies the Court must make the new calculation and in doing so it must apply section 9 as if references to the time the confiscation order is made were to the time of the new calculation and as if references to the date of the confiscation order were to the date of the new calculation.
4) If the amount found under the new calculation exceeds the relevant amount the Court may vary the order by substituting for the amount required to be paid such as:
- it believes is just, but.
- does not exceed the amount found as the defendant’s benefit from the conduct concerned.
5) In deciding what is just the Court must have regard in particular to:
- any fine imposed on the defendant for the offence (or any of the offences ) concerned;.
- any order which falls within section 13 (3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the Court in deciding what is the free property held by him for the purposes of section 9;
- any order which has been made against him in respect of the offence (or any of the offences) concerned under section 130 of the Sentencing Act (compensation orders).
6) But in deciding what is just the Court must not have regard to an order falling within subsection (5)( c) if a Court has made a direction under section 13 (6).
7) In deciding under this section whether one amount exceeds another, the Court must take account of any change in the value of money.
8) The relevant amount is:
- the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously; .
- the amount last found as the available amount in pursuance of this section , if this section has applied previously.
9) The amount found as the defendant’s benefit from the conduct concerned is:
- the amount so found when the confiscation order was made, or .
- if one or more new calculations of the defendant’s benefit have been made under section 21 the amount found on the occasion of the last such calculation.
Kangs Solicitors | Confiscation and POCA Solicitors
At Kangs Solicitors we have a dedicated team specialising in Confiscation, POCA, Asset Forfeiture and Restraint Order work and we are happy to provide clients and fellow professionals with an initial no obligation consultation.
There have been a number of instances when those already made subject to Confiscation Orders have returned to Court because of the application of Section 22 of POCA.
Should you receive notification of a ‘section 22 application’, we can help you prepare a response to it and represent you in Court at any subsequent hearing.
Please feel free to contact our team of confiscation solicitors through one of the following: