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Section 22 Confiscation Applications – What should I do?

It has become increasingly common for police and Crown prosecutors to look to re-open old satisfied confiscation orders in the hope of getting additional revenue. Resources are scarce and this procedure presents an opportunity to obtain some much needed income. Quite often the subject of such applications is the equity in a matrimonial home in which a former defendant, long moved on from criminal offending, has obtained perfectly legitimately. In such circumstances the Court is faced with a balancing exercise between  policy - to recover the proceeds of crime - and principle - that a person should be able to rehabilitate without the fear of looking over his or her shoulder for the rest of their lives.

The power to revisit a confiscation order is contained within section 22 Proceeds of Crime Act 2002 and is exercisable in the following situation:

  1. A confiscation order was made and there was a disparity between benefit and realisable assets;
  2. There are additional realisable assets now available;
  3. The Court considers it just to vary the amount payable under the original order.

So the Court retains a discretion as to whether or not to make an order and will only do so if it considers it ‘just’ to do so. In the recent case of Ian James Mundy [2018] EWCA 105 a Crown Court Judge sitting at Cardiff Crown Court refused to make such an order and the prosecution appealed. That appeal was unsuccessful but the Court of Appeal did give some useful guidance. Mr Mundy had been subject of a confiscation order back in 2008. The benefit figure was £172,365 and the realisable assets were £9,275. Having paid the confiscation order, he was released from prison back in 2010 and had rebuilt his life, purchased a house, some vehicles and saved some money. All of a sudden in March 2017, the prosecution made an application under section 22 for a reconsideration of the old 2008 order. The Judge was unimpressed and refused it and the prosecution appealed. The Court of Appeal upheld the Judge’s decision although they were unimpressed by his failure to give reasons. In his judgment Simon LJ set out five preliminary points about such applications:

  1. The Court must consider whether it is just to make an order first;
  2. The Court will only interfere with a Judge’s discretion where it was not ‘reasonable’;
  3. The passage of time is relevant although there is no express time limit;
  4. What is ‘just’ extends beyond what is ‘just’ to the defendant: “the word ‘just’ means just in all the circumstances, bearing in mind the purpose of such orders is the advancement of the public interest in confiscating the proceeds of crime;
  5. In cases not involving a ‘windfall’ gain consideration should be particularly anxious.

Quite often an application under section 22 is preceded by, or accompanied with, a Crown Court Restraint Order. The basis for exercising this draconian relief in such circumstances needs to be examined carefully particularly as the basis for making an application under section 22 at all is likely to be questionable. You should bear in mind that the prosecution needs to demonstrate a real risk that assets will be dissipated before such order should be granted. There is ongoing concern that the basis for making such orders is not properly scrutinised at a hearing at which only one party is represented.

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