Proceeds of Crime Act 2002, section 23

Inadequacy of available amount: variation of order

Part 2 Confiscation: England and Wales

(1)This section applies if—

(a)a court has made a confiscation order, and

(b)F135the defendant [F134 or the prosecutorF134] , or a receiver appointed under section 50 ..., applies to the Crown Court to vary the order under this section.

(2)In such a case the court must calculate the available amount, 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 calculation and as if references to the date of the confiscation order were to the date of the calculation.

(3)If the court finds that the available amount (as so calculated) is inadequate for the payment of any amount remaining to be paid under the confiscation order it may vary the order by substituting for the amount required to be paid such smaller amount as the court believes is just.

(4)If a person has been [F136madeF136] bankrupt or his estate has been sequestrated, or if an order for the winding up of a company has been made, the court must take into account the extent to which realisable property held by that person or that company may be distributed among creditors.

(5)The court may disregard any inadequacy which it believes is attributable (wholly or partly) to anything done by the defendant for the purpose of preserving property held by the recipient of a tainted gift from any risk of realisation under this Part.

(6) In subsection (4) “company” means any company which may be wound up under the Insolvency Act 1986 (c. 45) or the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)).

Definitions used in section 23 2

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
extent

(5) In this Part, the “extent” of the defendant's interest in property means the proportion that the value of the defendant's interest in it bears to the value of the property itself.

Defined in s.10A(5) · see it in the full Act

Cases considering section 23 28

R v Peter Adrian Dilenardo & Anor

[2025] EWCA Crim 1672 · 18 December 2025Limits

Limits variation proceedings by preventing them from being used to reopen findings about the defendant’s realisable assets made in the confiscation order. (see para [37])

R v Miroslav Pesko

[2023] EWCA Crim 1568 · 12 December 2023

The court identified an application to the Crown Court for a certificate of inadequacy as the remedy for a genuine post-order difficulty in realising assets. It held that the application could not be used to challenge the confiscation judge’s hidden-assets finding. (see para [33])

Johnson, R v

[2016] EWCA Crim 10 · 3 February 2016Interprets

The court held that recalculation under section 23 required the tainted gift to be valued under section 9 in the same way as at the original order. (see para [18]) The words “as so calculated” meant that the available amount remained £20,000 and was not inadequate for the statutory variation power. (see para [18]) The power to disregard a specified inadequacy did not imply a duty to take other inadequacies into account contrary to the Act’s plain terms. (see para [18])

8 more judgments, and what each says about section 23, are in the case-law panel in the full Act.

Explanatory note

54.Where a confiscation order has been made, there is a procedure in the earlier confiscation legislation for the defendant or a receiver appointed in the case to apply to the High Court for a “certificate of inadequacy” on demonstrating that the realisable property is insufficient to satisfy the confiscation order. Where the High Court issues a certificate of inadequacy, the certificate may be presented to the Crown Court or magistrates’ court and the amount of the confiscation order must then be reduced.

55.This certificate of inadequacy procedure is cumbersome and expensive. Section 23 provides instead for application to be made directly to the Crown Court by the defendant or a receiver appointed in the case.

All the explanatory notes for the Act

Amendments and notes

4 notes from legislation.gov.uk

Amendments

  1. F135Words in s. 23(1)(b) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 12, Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)
  2. F134Words in s. 23(1)(b) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 8(1), 88(1); S.I. 2015/820, reg. 3(e)
  3. F136Word in s. 23(4) substituted (6.4.2016) by The Enterprise and Regulatory Reform Act 2013 (Consequential Amendments) (Bankruptcy) and the Small Business, Enterprise and Employment Act 2015 (Consequential Amendments) Regulations 2016 (S.I. 2016/481), reg. 1, Sch. 1 para. 18

Commencement

  1. I18S. 23 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.