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