Proceeds of Crime Act 2002, section 7

Recoverable amount

Part 2 Confiscation: England and Wales

(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.

Definitions used in section 7 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 7 71

R v Ahmad and another

[2014] UKSC 36 · 18 June 2014Limits

The provision defines the recoverable amount as the defendant’s benefit from the conduct concerned. For jointly obtained property, that benefit may be the market value of the whole property. (see paras [29]; [60]-[70]) The provision limits the recoverable amount to the available amount where the defendant proves that the benefit exceeds what is available. (see paras [6]; [29])

R v Islam (Respondent) (on appeal from the Court of Appeal Criminal Division)

[2009] UKHL 30 · 10 June 2009Limits

The recoverable amount is prima facie equal to the defendant’s benefit from the relevant conduct. (see paras [5]; [27]; [55]) If the defendant proves that the available amount is lower than the benefit, the recoverable amount is restricted to the available amount, or a nominal amount if availability is nil. (see paras [5]; [27]; [36])

R v May (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

[2008] UKHL 28 · 14 May 2008Limits

The recoverable amount is prima facie equal to the defendant’s benefit from the conduct concerned. (see para [41]) If the defendant proves that the available amount is less than his benefit, recovery is limited to the available amount, or a nominal amount where none is available. (see para [41])

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

Explanatory note

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.

All the explanatory notes for the Act

Amendments and notes

9 notes from legislation.gov.uk

Amendments

  1. F41Words in s. 7(3) inserted (15.10.2013 for E., 5.11.2013 for W.) by Prevention of Social Housing Fraud Act 2013 (c. 3), s. 12, Sch. para. 13; S.I. 2013/2622, art. 2; S.I. 2013/2861, art. 2
  2. F42Words in s. 7(4) substituted (1.6.2015) by Policing and Crime Act 2009 (c. 26), s. 116(1), Sch. 7 para. 100; S.I. 2015/983, arts. 2(2)(e), 3(ff)
  3. F43Words in s. 7(4)(b) inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 20(a); S.I. 2018/78, reg. 5(3)(b)(i)(ii)
  4. F44Word in s. 7(4)(b) omitted (27.4.2017 for specified purposes, 16.4.2018 in so far as not already in force) by virtue of Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 20(b); S.I. 2018/78, reg. 5(3)(c)
  5. F45Words in s. 7(4)(c) inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 20(c); S.I. 2018/78, reg. 5(3)(b)(i)(ii)
  6. F46Words in s. 7(4)(c) substituted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 3(2)(a); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2
  7. F47S. 7(4)(d) and word inserted (27.4.2017 for specified purposes, 31.1.2018 for specified purposes, 16.4.2018 in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 20(d); S.I. 2018/78, reg. 5(3)(b)(i)(ii)
  8. F48Words in s. 7(4)(d) inserted (26.10.2023 for specified purposes, 26.4.2024 for S. for specified purposes, 26.4.2024 for E.W.N.I. in so far as not already in force, 7.11.2024 for S. in so far as not already in force) by Economic Crime and Corporate Transparency Act 2023 (c. 56), s. 219(1)(2)(b), Sch. 9 para. 3(2)(b); S.I. 2024/269, reg. 4(b)(i)(ii); S.I. 2024/1108, reg. 2

Commencement

  1. I2S. 7 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.