Confiscation Proceedings | Reconsideration: Inadequacy of Available Amount

Amandeep Murria of Kangs Solicitors follows his earlier discussion, concerning reconsideration of Benefit, by exploring  the position when the Available Amount is Inadequate.

The provisions are contained within the Proceeds of Crime Act (POCA) 2002.

This situation may arise when the available amount is inadequate for the payment of any amount remaining to be paid under the Confiscation Order.

Upon application, the court may vary the Confiscation Order by substituting the original amount ordered to be paid with such smaller amount as the Court believes is just.

Confiscation Law | Kangs Specialist Confiscation Solicitors

Under the Proceeds of Crime Act 2002

23  Inadequacy of available amount : variation of order.

This section applies if:

• a Court has made a confiscation order, and.
• the defendant, or receiver appointed under section 50 or 52, applies to the Crown Court to vary the order under this section.

In such a case the Court must calculate the available amount 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 calculation and as if references to the date of the confiscation order were to the date of the calculation.

If the Court finds that the available amount (as so calculated) is inadequate for the payment of any amount remaining to be paid under the confiscation order it may vary the order by substituting for the amount required to be paid such smaller amount as the Court believes is just.

If a person has been adjudged bankrupt or his estate has been sequestrated, or if an order for the winding up of a company has been made, the Court must take into account the extent to which realisable property held by that person or that company may be distributed among creditors.

The Court may disregard any inadequacy which it believes is attributable (wholly or partly ) to anything done by the defendant for the purpose of preserving property held by the recipient of a tainted gift from any risk of realisation under this Part.

In subsection (4) “company” means any company which may be wound up under the Insolvency Act 1986 (c.45 ) or the Insolvency (Northern Ireland ) Order 1989 (S.I. 1989/2405 (N.I. 19 )).

A Recent Kangs Case | Specialist Confiscation and POCA Solicitors

In a recent case, R -v- S,   Kangs represented a client who was made subject to a Confiscation Order.

The available amount was based upon the value of a watch which was in our client’s possession at the relevant time .

Our client approached a number of watch specialists for the purposes of selling the watch and using the sale proceeds to satisfy the Confiscation Order.

It transpired that the valuation attributed to the watch by the specialists was less than the value attributed to the watch by the Court when the Confiscation Order was made.

As a consequence, a S23 POCA 2002 application was made on behalf of our client and this was supported by evidence consisting of witness statements and valuation reports.

Based upon the evidence lodged, the Prosecutor did not oppose the application and the Court found the available amount was inadequate for the purposes of satisfying the Confiscation Order and varied the Order accordingly.

This enabled our client to swiftly pay the Confiscation Order and discharge his obligation, which was an enormous relief to him.

How Can We Help | Kangs Confiscation & POCA Solicitors

There have been a number of instances when those already made subject to Confiscation Orders have returned to Court because they have discovered the available amount is inadequate for the purposes of satisfying the original Confiscation Order.

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.

If you are experiencing difficulties with satisfying your Confiscation Order, please contact our specialist team through any of the following:

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

Amandeep Murria
amurria@kangssolicitors.co.uk
0161 618 1098 | 0121 449 9888