(1)The recoverable amount for the purposes of section 6 is an amount equal to the defendant’s benefit from the conduct concerned.
(2)But if the defendant shows that the available amount is less than that benefit the recoverable amount is—
(a)the available amount, or
(b)a nominal amount, if the available amount is nil.
(3)But if section 6(6) [F41or 6(6A)F41] applies the recoverable amount is such amount as—
(a)the court believes is just, but
(b)does not exceed the amount found under subsection (1) or (2) (as the case may be).
(4)In calculating the defendant’s benefit from the conduct concerned for the purposes of subsection (1), [F42the following must be ignored—
(a)any property in respect of which a recovery order is in force under section 266,
(b)any property which has been forfeited in pursuance of a forfeiture notice under section 297A [F43 or an account forfeiture notice under section 303Z9F43] , F44...
(c)any property in respect of which a forfeiture order is in force under section 298(2)F42][F45 , 303O(3), 303R(3) [F46 , 303Z14(4), 303Z41(4), 303Z45(3) or 303Z60(4)F46,F45]] [F47 , and
(d)any property which is the forfeitable property in relation to an order under section 303Q(1) [F48 or 303Z44(1)F48] .F47]
(5)If the court decides the available amount, it must include in the confiscation order a statement of its findings as to the matters relevant for deciding that amount.
25.Section 7 specifies how the amount recoverable under a confiscation order is to be calculated. The method of calculation is much the same as in the existing confiscation statutes. The amount is the amount of the defendant’s benefit from either his general criminal conduct or his particular criminal conduct (as the case may be), unless the amount available for confiscation is considered by the court and found to be less than the benefit in question, in which case the order must be made in that lesser amount. The amount available for confiscation is described as the available amount (equivalent to the term “the amount that might be realised” in the earlier confiscation legislation) and the amount actually ordered to be confiscated as the recoverable amount (equivalent to “the amount to be recovered” in the earlier confiscation legislation). Subsection (2) affirms a line of case law to the effect that the burden is on the defendant to show that the available amount is less than the benefit and to show the extent of the available amount. Where the court decides the available amount (and it will only do so at the defendant’s request), subsection (5) requires it to include a statement of its calculations in the confiscation order. This is intended to assist enforcement by alerting the enforcing authorities to the property available for confiscation.