(1)For the purposes of deciding the recoverable amount, the available amount is the aggregate of—
(a)the total of the values (at the time the confiscation order is made) of all the free property then held by the defendant minus the total amount payable in pursuance of obligations which then have priority, and
(b)the total of the values (at that time) of all tainted gifts.
(2)An obligation has priority if it is an obligation of the defendant—
(a)to pay an amount due in respect of a fine or other order of a court which was imposed or made on conviction of an offence and at any time before the time the confiscation order is made, or
(b)to pay a sum which would be included among the preferential debts if the defendant’s bankruptcy had commenced on the date of the confiscation order or his winding up had been ordered on that date.
(3) “Preferential debts” has the meaning given by
section 386 of the Insolvency Act 1986 (c. 45)
.
Cases considering section 9 49
[2014] UKSC 36 · 18 June 2014Interprets
The provision defines the available amount by reference to the defendant’s free property, less obligations having priority. An asset may initially be available to more than one joint holder, although payment later changes that position. (see paras [29]; [68])
[2009] UKHL 30 · 10 June 2009Limits
The available amount comprises the current value of free property held by the defendant, subject to priority obligations, together with tainted gifts. Property must be capable of lawful realisation to meet the order. (see paras [5]; [27]; [36]-[37])
[2026] EWCA Crim 1240 · 30 September 2026Limits
The court interprets section 9 as requiring the available amount to include separate free-property and tainted-gift components. A shortfall in the former cannot reduce the latter. (see paras [22]–[35])
The court interprets section 9(1) as requiring an aggregate of distinct statutory components. It rejects cross-netting between the free-property and tainted-gift components. (see paras [22]–[25])
The court interprets the free-property calculation as incapable of producing a negative contribution to the available amount. Where priority obligations exceed free property, the relevant contribution is zero and cannot reduce tainted gifts. (see paras [23]–[25])
The court interprets section 9(1)(b) as requiring the total value of tainted gifts to be included as a separate component. That value is not reduced by a shortfall under section 9(1)(a). (see paras [23]–[25]; [31]–[33])
The court recorded that section 9(1)(c), added in 2026 for hidden property, was not in force when the confiscation order was made. Its addition left sections 9(1)(a) and (b) unamended. (see paras [11]; [31])
The court left the application of the priority-obligation definition to the Spanish orders undecided. The issue was immaterial because the tainted-gift component was not reduced by any shortfall under section 9(1)(a). (see paras [13]–[14]; [36])
The court did not determine whether the Spanish orders fell within the specific priority obligation described in section 9(2)(a), because the statutory construction resolved the appeal without that analysis. (see paras [10]; [13]–[14])
- R v David Charles Stevens[2025] EWCA Crim 1123 · 15 July 2025
- Ronan Hughes & Anor v R[2024] EWCA Crim 357 · 12 April 2024
- Regina v Niki Wood[2022] EWCA Crim 1243 · 20 September 2022
- Benos, R. v[2019] EWCA Crim 1093 · 14 June 2019
- Moss, R v[2019] EWCA Crim 501 · 26 March 2019
- Box, R v[2018] EWCA Crim 542 · 15 March 2018
- Brooks v R.[2016] EWCA Crim 44 · 10 March 2016
- Boyle Transport (Northern Ireland) Ltd v R. (Rev 1)[2016] EWCA Crim 19 · 25 February 2016
- Johnson, R v[2016] EWCA Crim 10 · 3 February 2016
- Parkinson, R. v[2015] EWCA Crim 1448 · 10 July 2015
- Kakkad, R v[2015] EWCA Crim 385 · 17 March 2015
- Heron v Serious Organised Crime Agency & Anor[2013] EWCA Civ 1106 · 22 July 2013
- Smith, R. v[2013] EWCA Crim 502 · 8 March 2013
- Walker, R v[2011] EWCA Crim 103 · 24 January 2011
- Modjiri, R. v[2010] EWCA Crim 829 · 22 April 2010
- Najafpour, R v[2009] EWCA Crim 2723 · 8 December 2009
- Chen, R v[2009] EWCA Crim 2669 · 4 December 2009
29 more judgments, and what each says about section 9, are in the
case-law panel in the full Act.
27.Section 9 explains how the available amount is to be calculated. It is calculated in the same way as “the amount that might be realised” in the earlier confiscation legislation. The available amount is the value of all the defendant’s property, minus certain prior obligations of the defendant’s such as earlier fines, plus the value of all tainted gifts made by the defendant. Tainted gifts are described in section 77.