Proceeds of Crime Act 2002, section 22

Order made: reconsideration of available amount

Part 2 Confiscation: England and Wales

(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;

F128 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)F129a 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 [F130section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 or Chapter 2 of Part 7 of the Sentencing CodeF130] (compensation orders).

[F131 (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 [F132 or section 42 of the Sentencing CodeF132] (orders requiring payment of surcharge).F131]

(6)But in deciding what is just the court must not have regard to an order falling within subsection (5)(c) [F133 or (d).F133] 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.

Definitions used in section 22 1

the court

(10) In this section, sections 120 to 140 and Schedule 3 “the court” means—

(a)the Court of Session, where a trial diet or a diet fixed for the purposes of section 76 of the Procedure Act in proceedings for the offence or offences concerned is to be, is being or has been held in the High Court of Justiciary;

(b)the sheriff exercising his civil jurisdiction, where a diet referred to in paragraph (a) is to be, is being or has been held in the sheriff court.

Defined in s.119(10) · see it in the full Act

Cases considering section 22 27

Regina v Niki Wood

[2022] EWCA Crim 1243 · 20 September 2022Interprets

An application under section 22 is for a new calculation of the available amount. The court relied on that wording when construing section 22(3). (see para [43]) The new calculation is a reassessment of the available amount under section 9 at the time of reconsideration. It includes all assets that are or have been available in the original-order context, not merely current new or revalued assets. (see paras [43]-[49]) The provision confers a broad discretion to substitute a higher amount only where the court considers it just, subject to the benefit cap. Delay and hardship may be relevant but did not make the increase unjust here. (see paras [50]-[60]) When comparing amounts under section 22, the court must account for changes in the value of money. The court treated this as the only express qualification on reasons for available amount being inadequate. (see para [41]) The relevant amount is the available amount found for the original confiscation order where section 22 has not previously applied. The court compared the recalculated total against that amount. (see paras [2]; [49])

R v S

[2019] EWCA Crim 569 · 4 April 2019Interprets

Section 22 permits reconsideration of the available amount under a confiscation order. The court confirmed that legitimately acquired assets may be within reach and that the substituted amount is assessed by reference to what is just in all the circumstances (see paras [10]-[11]; [28]-[30]; [37]-[39]). The court held that the use of “may” and the requirement that the court believe the order just confer a broad discretion. Delay, assistance to the authorities and rehabilitation may be weighed in that assessment (see paras [29]-[30]; [37]-[39]). The Recorder permissibly applied the requirement to select an amount believed to be just. His 40% reduction for the passage of time and the appellant’s assistance was within the discretion conferred by the provision (see paras [24]; [35]-[39]).

O'Flaherty, R. v

[2018] EWCA Crim 2828 · 26 October 2018

The court upheld the section 22 variation after finding that the asserted third-party interest was unproved and, in any event, amounted only to an unsecured loan. The appeal was allowed solely to correct agreed calculation errors. (see paras [30]-[35])

7 more judgments, and what each says about section 22, are in the case-law panel in the full Act.

Explanatory note

52.Section 22 applies where the court made a confiscation order in an amount lower than the defendant’s assessed benefit because there was insufficient realisable property to satisfy an order in the full amount. The prosecutor, the Director, or a receiver appointed in the case may apply to the Crown Court for the court to recalculate the available amount. This is an example of a function exercised by the Crown Court under the Act that has previously been exercised by the High Court.

53.Any number of applications may be made and there is no limitation to the time when an application may be made (in contrast to sections 19 to21, under which application must be made within six years of the defendant’s conviction). If the court calculates that the available amount has increased, it may vary the amount payable under the confiscation order but may not increase it beyond the defendant’s assessed benefit (meaning either the benefit assessed when the confiscation order was originally made or when it was increased on a revaluation under section 21). Subsection (5) requires the court to have regard to any fine, ancillary order or compensation order imposed on the defendant following the original conviction because these may affect the amount the offender is able to pay. However, subsection (6) contains similar technical provision to section 21(10) to prevent allowance being made twice in the defendant’s favour for the same compensation order.

All the explanatory notes for the Act

Amendments and notes

7 notes from legislation.gov.uk

Amendments

  1. F128S. 22(2)(b) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 11(a), Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)
  2. F129Words in s. 22(2)(c) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 11(b), Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)
  3. F130Words in s. 22(5)(c) substituted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 188(a) (with Sch. 27); S.I. 2020/1236, reg. 2
  4. F131S. 22(5)(d) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), s. 88(1), Sch. 4 para. 26(2); S.I. 2015/820, reg. 3(q)(iii)
  5. F132Words in s. 22(5)(d) inserted (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 188(b) (with Sch. 27); S.I. 2020/1236, reg. 2
  6. F133Words in s. 22(6) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), s. 88(1), Sch. 4 para. 26(3); S.I. 2015/820, reg. 3(q)(iii)

Commencement

  1. I17S. 22 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.