24/10/22

Success in Section 22 POCA 2002 Variation Case | Kangs POCA solicitors

Share

Kangs Solicitors has successfully represented a client who was facing an application by the Prosecution under Section 22 of the Proceeds of Crime Act 2002 (‘POCA’) to increase the ‘Available Amount’ shown in his Confiscation Order dated 18 October 2019 (the ‘Confiscation Order’).

Amandeep Murria of Kangs Solicitors explains how this Application by the Prosecution was successfully challenged.

Kangs Solicitors is nationally recognised for its work in Cash Forfeiture and POCA proceedings and in the legal directory Chambers & Partners (2022 edition) the firm has again been recognised as one of the leading POCA & Asset Forfeiture law firms in the country.


For an initial no obligation discussion, please contact our team at any of the offices detailed
below:

0207 936 6396

0121 449 9888

0161 817 5020

London

Birmingham

Manchester

The Relevant Law | Section 22 – POCA 2002 | Kangs Financial Crime Solicitors

POCA provides at section 22:

‘22  Order made: reconsideration of available amount

(1) This section applies if—

(a) a court has made a confiscation order,
(b) the amount required to be paid was the amount found under section 7(2), and
(c) an applicant 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—

(a) the prosecutor;
(c) a receiver appointed under section 50

(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 amount as—

(a) it believes is just, but
(b) 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—

(a) any fine imposed on the defendant for the offence (or any of the offences) concerned;
(b) 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;
(c) any order which has been made against him in respect of the offence (or any of the offences) concerned under section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 7 of the Sentencing Code] (compensation orders).
(d) any order which has been made against the defendant in respect of the offence (or any of the offences) concerned under section 161A of the Criminal Justice Act 2003 or section 42 of the Sentencing Code] (orders requiring payment of surcharge).

(6) But in deciding what is just the court must not have regard to an order falling within subsection (5)(c) or (d). 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—

(a) the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously;
(b) 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—

(a) the amount so found when the confiscation order was made, or
(b) 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.’

The Circumstances | Kangs POCA & Restraint Order Solicitors

The Insolvency Service sought to increase the Available Amount on the basis that in the Confiscation Order:

  • The ‘Benefit Figure’ was calculated at £196,419.14
  • The ‘Available Amount’ was shown as £27,950.79

which debt was discharged in full.

Subsequent financial investigations carried out by the Insolvency Service revealed our client’s property had increased in value with the result that it sought to increase the Available Amount to £145,518,79 which it maintained, represented the increase in value of the equity in our client’s property ( £117,568.00).

How We Assisted Our Client | Kangs POCA Team

– Having taken detailed instructions from our client, the team at Kangs Solicitors carried out research to ascertain whether the market valuation of the property relied upon by the Prosecution was reasonable.

– Our investigations revealed that our client’s wife, who was not registered on the title of the property, was entitled to an equal share of the equity in the property.

– We advised our client upon his position and upon the appropriate course to adopt to oppose the Application.
The Team at Kangs Solicitors prepared and submitted detailed written Representations to the Insolvency Service that its assessment of the Available Amount should be reduced.

– Having considered our persuasive Representations, the Insolvency Service agreed to reduce the Available Amount, accepting our client’s beneficial interest should be limited to one half of the equity contained within the property to reflect his wife’s interest, which was accepted.

– The Available Amount forming part of the Confiscation Order was varied accordingly.

Naturally, our client was grateful for the detailed successful work conducted on his behalf by the Team at Kangs Solicitors, which resulted in this highly satisfactory outcome.

How Can We Help You? | Kangs POCA and Restraint Order Solicitors

If you find yourself faced with any form of application under POCA or any financial restraint proceedings, it is essential that you have the support and guidance of experienced solicitors from the outset.

At Kangs Solicitors we have an experienced team defending clients in all aspects of the criminal and civil law on a daily basis and which is very well versed in POCA, cash seizures and all manner of restraint procedures.

Our team is led by Hamraj Kang who is recognised as a leading expert in the field by both legal directories Chambers & Partners and the Legal 500.

Other members of the team are ranked in the Legal 500 and also ranked in Chambers & Partners.

If we can be of assistance, our Team is available via telephone 0333 370 4333 and by email info@kangssolicitors.co.uk.

We provide initial no obligation discussion at our three offices in London, Birmingham and Manchester.

Alternatively, discussions can be held virtually through live conferencing or telephone.

Hamraj Kang

Email Hamraj

07976 258171

020 7936 6396

0121 449 9888

John Veale

Email John

0121 449 9888

020 7936 6396

0161 817 5020

Amandeep Murria

Email Amandeep

0121 449 9888

020 7936 6396

0161 817 5020

Financial Investigations
There is a plethora of reasons for money transfers, ranging from sending birthday gifts to providing essential support to family members overseas. Informal Value Transfer Systems (IVTS) are adopted by individuals for a multitude of reasons, especially in situations where conventional banking systems are either unavailable or inconvenient. The term ‘Informal Value Transfer Systems,’ describes […]
15/04/24
POCA
To prevent an offender benefiting financially from their criminal conduct, the Proceeds of Crime Act 2002 (‘POCA’), enables the Prosecution to request the Court for Confiscation Proceedings following a conviction. On the 28th March 2024 Chelmsford Crown Court made a Confiscation Order of £22,305 against Stephen Bear, a television ‘reality star’, following his conviction for […]
12/04/24
Financial Investigations, Tax & HMRC
The Finance Act 2024 (‘The Act’), received Royal Assent on the 22 February 2024. Among its provisions is the implementation of several tax reliefs and exemptions, new criminal offences related to Tax Avoidance Schemes, and an increase in maximum terms of imprisonment for individuals convicted of tax offences. Hamraj Kang highlights the Act to the […]
11/04/24

Get in touch