PDS Advocacy Team

There has been a significant rise across the UK in applications pursuant to section 22 Proceeds of Crime Act (POCA). This section of POCA allows the Prosecution to ask the Court to reconsider the ‘available amount’ of a confiscation order where there was a disparity between the benefit figure and the original available amount, there are additional assets available to be realised and the Court determine it would be ‘just’ to do so. Some areas have set up specialist teams to consider old confiscation orders and undertake searches on defendants to ascertain whether there are any additional assets which can be identified.

The leading case on this section is Padda [2013] EWCA Crim 2330 which stated that when determining what is ‘just’ the Court must consider the following factors:

  1. The amount outstanding;
  2. The additional amount which might now be available;
  3. The length of time since the original confiscation order;
  4. The impact on the defendant of any further payment;
  5. Any other consideration which might be thought to affect the justice of the case.

The Court will consider the circumstances of the case and will be particularly cautious in cases where it does not involve a ‘windfall’ such as winning the lottery. The Court in the case of Mundy [2018] EWCA Crim 105 refused to make such an order which was appealed by the Prosecution. The Court of Appeal refused the appeal and re-affirmed the guidance set out in the case of Padda.

It will be important that your defence team consider all the circumstances and impact any order will have on others. Witness statements should be obtained and provided in support. Your defence team should prepare a full detailed response to the application considering all the relevant factors set out in Padda.

An important factor will be time span between the original order and the section 22 application. Parliament had clearly intended that these applications could be made after six years as section 23 applications to amend the benefit figure have a 6-year time limit. However, at what point does it become disproportionate to make the order amending the available amount? Particularly, as it appears inconsistent with the Rehabilitation of Offenders Act and a person’s right to family life.

This could be a highly contentious area resulting in a number of appeals before the Court of Appeal.

As a defendant, you will likely receive a consent order and statement from a financial investigator. Upon receipt, you should seek immediate legal advice. If you receive an application, please do not hesitate to contact Ryan O’Donnell at our Cheltenham office who can assist. Ryan is a member of the Proceeds of Crime Lawyers Association.