“Uplift” Applications by the Crown – s22 POCA 2002
A Defendant may think that a successful defence of a Confiscation Order where they are not ordered to pay back more than they have represents the end of confiscation proceedings.
This is not always the case; at any time after a confiscation order has been made the Crown may seek to re-open the proceedings under s22 of the Act, to seek an increase in the amount the defendant was ordered to pay. This is often referred to as an application for “after acquired assets”.
In simple terms if a defendant is made subject to an order with a benefit figure that has not been satisfied by the available amount at the time, if the Crown become aware in the future a defendant has acquired additional assets they may apply to increase the order by the value of those assets.
A defendant is made subject to a confiscation with a benefit of £85,000 in 2010, but at the time of the order only has assets totalling £5,000. In 2010 the order is made for the defendant to pay £5,000.
By 2015 the defendant has following release from prison built up a successful business and now owns motor vehicles and a property. The Crown become aware the defendant has now acquired assets and seek to increase the original £5,000 order to take account of the new assets.
There is no time limit on these applications and crucially the fact that newly acquired assets are legitimate does not prevent the Court from making this order.
At Olliers we seek to avoid our clients becoming subject to s22 orders by reducing the benefit figure as much as possible when the confiscation order is made, and if a s22 application arises applying meticulous preparation and expert defence to the making of any new order.
Mr. F was made subject to a confiscation order in 2009; his benefit was found to be £55,000, but at the time his available amount was nil. He was therefore only ordered to pay £1.
In 2013 he became subject to repeated traffic stops by local police who became aware he was driving high value motor vehicles. When the Financial Crime Unit became aware of this they applied under s22 POCA to re-open his case and alleged he now held assets sufficient to pay the entire benefit figure, and that he had “Hidden Assets”. Tom Cawley successfully negotiated a settlement of £10,000 ensuring the defendant was not made subject to an order he could not re-pay.
For all matters relating to Asset Recovery, POCA and Confiscation contact one of our specialist Confiscation Lawyers today