Section 22 Proceeds of Crime Act 2022 Applications
In the case of a defendant who has previously been subject to Proceed of Crime Act Proceedings and had a Confiscation Order made against, Section 22 Proceeds of Crime Act 2002 permits the Prosecution to apply to the Court, to recalculate the “available amount.” If the available amount is found to be greater than the amount calculated at the time of making the initial Confiscation Order, the Court can vary the original Confiscation order.
What does this mean in practice?
In recent times, the Crown Prosecution Service (CPS) have been reviewing cases from approximately 10 years ago where a Confiscation Order was made against a defendant and there was a shortfall between the “benefit amount” and the “available amount”. This means that the Court considered the defendant had benefited from the crime(s) considerably more than the funds they had available to them at the time of making the Confiscation Order. Here the CPS looks into the Defendant’s current financial circumstances.
Indeed, a defendant may have left their criminal offending past behind, started a new life and become financially successful, potentially buying a property, generating savings or acquiring other assets. If the CPS consider that the Defendant’s newly acquired wealth means that they have more funds available to them than at the time the Confiscation was made, section 22 enables them to apply to the Court for the “available amount” to be recalculated and the initial Confiscation Order varied.
In the case where a defendant has developed equity in their home, this will be considered to form part of the “available amount” and so may mean they have to sell their home to satisfy a newly varied Confiscation Order.
Factors the Court will take into consideration
The case of R v Ian James Mundy [2018] EWCA 105 helpfully summarises the factors that a Court will take into consideration when deciding whether to grant a section 22 application:
- Whether it is just to make the varied Order;
- The passage of time since the initial Order was made; and
- How the increased “available amount was obtained”.
Legal Representation
Frequently, the CPS will initiate a section 22 application by sending a draft Order to the defendant and simply ask them to agree to the terms. If the defendant does not agree, the CPS will be likely to make the application in Court.
It is important to take legal advice as soon as contact is made by the CPS. It is sometimes possible to make representations to the CPS to discontinue their application or to negotiate more reasonable terms of a proposed variation to the Order.
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