Section 23 Proceeds of Crime Act 2002. When an individual has been convicted of a criminal offence that comes within the scope of Schedule 2 of the Proceeds of Crime Act 2002, they may subsequently find themselves subject to confiscation proceedings. Confiscation proceedings involve the Court imposing a Confiscation Order against the Defendant, which requires them to pay an amount of money equivalent to the value of the assets that are available to the defendant when the Order is made.
The available assets are listed within a schedule attached to the Confiscation Order and may include properties, vehicles, or jewellery deemed to be available to the Defendant. The defendant may choose to sell the assets listed in the order or pay the order by some other means.
Commonly, In circumstances where the defendant sells the assets in order to satisfy the order, the value placed upon the assets at the time that the Confiscation Order is made cannot be achieved. For example, where a piece of jewellery is sold at auction and sells for less than the initial valuation proposed or where the Defendant’s property may not be able to reach its full market value, as a result of market buoyancy or unforeseen expenses.
Varying the value of a section 23 Proceeds of Crime Act 2002 order
Where the estimated value cannot be reached often the Confiscation Order is left unpaid. In these circumstances, we may be able to assist by preparing a Section 23 POCA 2002 to vary the value of the Confiscation Order.
Section 23 applications can be made where the value of a listed asset cannot be obtained. The application seeks to reduce the amount payable under the terms of the Confiscation Order. The defendant must be able to provide evidence of the disposal of the asset and demonstrate that they have no further assets available to make further payments.
Often, where the defendant has provided clear and cogent evidence of the disposal and can show that the diminution in the value of the asset cannot be attributed to their conduct, the application may be agreed by consent with the Prosecution.
The court’s response
However, where an application is contested, the Court must determine the application to vary the order in a way that the Court thinks ‘just’ under Section 23(3) POCA 2002, after taking into consideration all of the points and evidence put forward within the application. For example, where a defendant fails to maintain mortgage payments and a property is repossessed, the Court may not consider it just to afford the defendant a significant reduction.
Section 23 of POCA is an important mechanism, as once the defendant has realised all of their assets if there remains a discrepancy between the value of the Confiscation Order and the actual amount that the assets realised, unless a Section 23 application is made the defendant will continue to be liable for the full amount. In addition to this, the defendant will also be liable for any interest that accrues on the amount outstanding and could face the prospect of serving a default sentence.
In a previous Legal Aid funded case, the client approached Cohen Cramer to request assistance with the preparation of a Section 23 application, after the defendant was convicted of engaging in an unfair commercial practice. The Defendant’s available amount listed on the Confiscation Order was £986,815.76. After some investigation into the sale of the assets, we were able to successfully argue that the actual amount realised was £870,506.35 reducing the Defendant’s available amount by £116,309.41 and avoiding the imposition of a default sentence.
If a Defendant is continuing to pay a Confiscation Order despite having no further assets available, it is in their interest to seek expert advice regarding the preparation of a Section 23 application. If the Confiscation Order is not paid in full, the defendant will be ordered to pay interest and a default sentence could be imposed.
How we can help
If you find yourself in this situation, our expert POCA team is happy to advise and assist in the preparation of Section 23 applications.View Post
For expert POCA advice, get in touch with us today:
- Call: 01132440597
- Email: email@example.com
Tilly Twite June 2021