Regina v Niki Wood

Under Proceeds of Crime Act 2002, section 22 requires a genuine reassessment of the defendant’s available amount. A “new calculation” is not confined to newly discovered assets, revalued assets, or assets still held when the application is heard. It must consider all assets that are or have been available in the context of the original confiscation order, using all evidence then available.

The discretion to increase an order under section 22(4) is broad. Delay, legitimate acquisition, rehabilitation and exceptional hardship may be relevant, but the overriding statutory purpose of recovering criminal benefit remains highly influential. The court must decide what is just in all the circumstances and ensure that the result is proportionate.

The appellant had been convicted of mortgage-related deception and fraud. In 2014, the Crown Court made a confiscation order for £610,564.94, reflecting an available amount lower than his criminal benefit.

After the original sum had been paid, the prosecution applied under section 22 of the Proceeds of Crime Act 2002. It relied principally on increased equity in the appellant’s family home, together with revalued land and a newly identified pension. The Crown Court at Inner London increased the order.

The appeal concerned whether the section 22 “new calculation” could exceed the original available amount when the value of the identified or revalued assets alone did not do so, and whether the increase was unjust or disproportionate because of delay and hardship to the appellant’s family.

1. Appeal dismissed, subject to correction of the revised figure. Leave to appeal was granted, but the confiscation order was adjusted to require payment of £922,456.20 rather than £924,456.20.

2. Section 22(1)(c) of the Proceeds of Crime Act 2002 requires a new calculation of the available amount. Under section 22(3), section 9 is applied at the date of that calculation. The calculation is a reassessment of the defendant’s available assets in the context of the original confiscation order and on all evidence then available. It is not limited to the present value of newly found or revalued assets, nor to assets still retained by the defendant.

3. The contrary interpretation would disregard the original order and payments made towards it. It would create incentives to conceal or undervalue assets and could permit a defendant to retain later discovered criminal assets. That would be inconsistent with the statutory purpose identified in R v Waya [2012] UKSC 51 and would produce arbitrary and absurd outcomes.

4. The judge was therefore entitled to add the £311,891.26 increase in available assets to the original recoverable amount. The resulting new calculation exceeded the relevant amount for section 22(4).

5. Section 22(4) confers a broad discretion requiring an increase to be just. Delay, consequential hardship, legitimate acquisition of assets, rehabilitation and exceptional hardship may be material, but they are not an exhaustive list. The judge had considered the delay, the possible effect on the family home, the absence of evidence of actual hardship, and the appellant’s past receipt of third-party assistance. There was no representation that a section 22 application would not be made and no material prejudice caused by delay. The increase was just and proportionate to the statutory purpose of recovering criminal benefit.

• Court of Appeal (Criminal Division): Permission to appeal was granted, but the appeal from the section 22 variation was dismissed, subject to correction of the revised sum: [2022] EWCA Crim 1243.
• Crown Court at Inner London: On 20 October 2021, HHJ Kelleher varied the original confiscation order under section 22 of the Proceeds of Crime Act 2002.
• Crown Court at Blackfriars: Following conviction in 2013, the court made the original confiscation order on 22 January 2014.