Benefit and Available Amount
Defendants facing Confiscation Proceedings will find that when the Crown seek a Confiscation Order against them, they will be subject to two different calculations.
The first figure is that of a defendant’s “benefit”; that being the amount the Crown allege the defendant has obtained as a result of or in connection with their criminal conduct.
A simple example would be where a defendant had committed a fraud to the value of £10,000. His benefit would be ordinarily be in this amount.
The Crown may also seek to increase the benefit In “Criminal Lifestyle” cases where the calculation also includes the value of property a defendant has obtained in the previous six years prior to them being charged.
Once the benefit is calculated the Crown will then turn to the available amount; this is formed of the entirety of the defendant’s current assets. The Crown may also allege a defendant has “Hidden Assets”
In respect of both figures, it is vital that defendants are represented by lawyers who understand and can argue what the calculations should be. Particularly with regard to benefit this is an area that has been the subject of extensive case law dealt with by the House of Lords and the Supreme Court. Cases with multiple defendants and those charged with conspiracy to commit an offence may be able to argue their benefit figures should be reduced.
When the Court makes the Confiscation Order, unless they are found to have hidden assets, the defendant will not be ordered to pay back more than they have by way of available amount. Even in this scenario it is important that the Court has an up to date valuation as amending this amount later on could result in delay or interest being added to the order.
A defendant may have benefitted in the sum of tens of thousands of pounds, but the Court may accept they have no significant assets and make a nominal order. In this situation this may not be the end of the confiscation proceedings; it is open to the Crown to apply to re-open a Confiscation Order at a later date to apply for a defendant’s further assets acquired months or years after the original order, up to the value of the benefit found in the first instance. This is a s22 Application.
Olliers always seek to reduce the benefit figure as much as possible, both to ensure that a defendant can retain available assets over and above any criminal gain but also to ensure that in cases where a defendant has no assets at the time of the order that they are not exposed to the future risk of their order being re-opened years into the future with the Crown seeking to seize after acquired assets. Defendants may find their representative advises them that the benefit figure isn’t important as long as the available amount is not set higher than they can repay. This couldn’t be further from the truth.
Ms. P faced confiscation proceedings following a guilty plea to a conspiracy to burgle. Her involvement was limited to that of in effect a “getaway driver”. She never received the spoils of the burglaries and was only paid to drive the main defendant to commit the burglaries. When the Crown pursued POCA they sought a benefit of £250,000. Following extensive legal argument and submissions in writing on her behalf Olliers successfully reduced this figure to £2,325, reflecting her true financial gain from the offence.