Section 22 POCA: Reconsideration of the Available Amount

What Is Section 22 POCA?

Section 22 of the Proceeds of Crime Act 2002 (POCA) allows the Crown Court to recalculate the available amount after a confiscation order has already been made. This provision is commonly used when the defendant’s financial circumstances have improved since the original order.

Also known as a “second bite of the cherry”, section 22 gives the prosecution the opportunity to recover more of the benefit figure if previously unavailable assets become accessible.

When Does Section 22 Apply?

Section 22 POCA applies only when:

• A confiscation order has already been made by the Crown Court;

• The amount ordered to be paid was based on the available amount under section 7(2);

• A qualifying applicant (usually the prosecution) applies to the court for a new calculation of the available amount.

If the newly calculated available amount exceeds the original, the court can vary the confiscation order — but the Crown Court cannot increase the confiscation order beyond the original benefit amount.

Who Can Apply Under Section 22 of POCA?

Under section 22(2) POCA, only the following parties can apply:

• The prosecutor;

• A receiver appointed under section 50 POCA.

Seemingly, defendants cannot apply under section 22. This power is strictly for recalculating the amount payable upwards in favour of the Crown, so there is no reason why a defendant would ever initiate such an application.

Why Is Section 22 Important in Confiscation Proceedings?

Section 22 is a powerful tool for prosecutors seeking to recover more of the criminal benefit figure over time. It is especially relevant in cases involving:

• Hidden assets later uncovered;

• Inheritances, compensation, or property sales received by the defendant post-conviction;

• Growth in asset value, such as rising house prices or maturing investments.

For defendants, section 22 is a reminder that a confiscation order may not be the end of the matter. If the full benefit amount remains unpaid, the case can be reopened even years later.

What Does the Court Consider Under Section 22 POCA?

Before varying the order, the court must consider whether it is just to do so. Section 22(5) POCA outlines factors the court must take into account, including:

• Any fine imposed on the defendant;

• Any compensation order or financial penalty already made;

• Any surcharge order (e.g. under section 161A of the Criminal Justice Act 2003).

The court must also disregard certain orders if they have already been excluded under section 13(6) POCA.

The recalculated amount must also be adjusted for inflation or changes in value, ensuring fairness over time.

Key Takeaways

• Section 22 POCA allows the Crown Court to recalculate the available amount and increase the amount payable under an existing confiscation order.

• It applies when the full benefit figure has not been paid and the defendant’s financial circumstances have improved.

• The prosecutor or a court-appointed receiver can apply.

• The Crown Court cannot increase the confiscation order beyond the original benefit amount.

• The court must consider whether it is just to vary the order and assess any other financial penalties already imposed.