Variation of Available Amount | S22 POCA 2002 | Kangs POCA Solicitors
Kangs Solicitors has been instructed to defend a client who has received an Application to vary the ‘available amount’ set out within the Confiscation Order imposed upon him under the Proceeds Of Crime Act 2002 (‘POCA’) at the Crown Court.
In previous articles posted to this website on many occasions, we have set out in considerable detail many aspects of the implementation of POCA, including the manner in which ‘the available amount’ is calculated.
In simple terms, ‘the available amount’ is:
- The total value when the Confiscation Order is made of the defendant’s free property less the total amount of obligations having priority, and
- The total value of any ‘tainted gifts
An application pursuant to Section 22 POCA may be pursued by the Prosecution in circumstances where it considers the available amount to be higher than the original Confiscation Order figure. This could be as a result of various factors including the defendant acquiring ‘clean assets’ well after the imposition of the Confiscation Order which can now form part of the available amount calculation.
Amandeep Murria of Kangs Solicitors outlines the circumstances.
Kangs Solicitors is nationally recognised for its work in Cash Forfeiture and POCA proceedings and the legal directory, Chambers UK has again recognised the firm as one of the leading POCA & Asset Forfeiture law firms in the country.
The Circumstances | Kangs Section 222 POCA Variation Solicitors
- Following the making in 2019 of a Confiscation Order against our client, the Available Amount calculated to be payable by our client, was paid in full within the specified time.
- Following a further Financial Investigation, the Prosecution now seeks to vary the amount due under Confiscation Order by virtue of S22 POCA.
- The matter is ongoing and the Team at Kangs Solicitors is preparing submissions for presentation to the Prosecution seeking a prompt and satisfactory resolution on behalf of our client.
For an initial no obligation discussion, please call our Team at any of our offices detailed below:
The Relevant Law | Kangs Financial Crime Solicitors
POCA provides at Section 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,
(b) the director,
(c) 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
(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.
(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
(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.’
How Can We Help You? | Kangs Proceeds of Crime Act Solicitors
If you find yourself faced with an application to vary the amount contained within your Confiscation Order, or a Financial Restraint Order of any nature, 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 UK and the Legal 500.
Other members of the team are ranked in the Legal 500 and also ranked in Chambers 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.