Inadequacy of Available Amount under POCA
Inadequacy of the Available Amount under POCA: Sections 23 and 24
The Proceeds of Crime Act 2002 (POCA) contains specific provisions that deal with situations where a defendant cannot meet the terms of a confiscation order. These are found in section 23 and section 24, both of which address the inadequacy of the available amount.
Section 23: Variation of a Confiscation Order
Section 23 applies where:
A court has made a confiscation order
The defendant, the prosecutor, or a receiver applies to vary the order
In such cases, the court must recalculate the available amount, treating the calculation date as if it were the date of the confiscation order.
If the recalculated available amount is inadequate to pay the balance of the order, the court may reduce the amount payable to a level it believes is just.
There are additional considerations:
If the defendant is bankrupt, their estate is sequestrated, or a company is wound up, the court must consider how realisable property may be distributed among creditors.
The court may disregard any inadequacy that arises because the defendant acted to shield tainted gifts from realisation.
In short, section 23 allows the court to reduce the balance of a confiscation order if the defendant no longer has sufficient assets to meet it, subject to the above conditions.
Section 24: Discharge of a Confiscation Order
Section 24 provides for a different outcome, the discharge of the order altogether, but only in limited circumstances.
This section applies where:
A court has made a confiscation order
The designated officer for a magistrates’ court applies to the Crown Court for discharge
The remaining balance on the order is less than £1,000
Again, the court must recalculate the available amount as if the order were being made at that time.
If the court finds that the available amount is inadequate to pay the balance, and the inadequacy is due wholly to one or more specified reasons, it may discharge the order.
The specified reasons are:
Currency fluctuations where realisable property is held in a non-sterling currency
Any further reasons specified by the Secretary of State by order
The Secretary of State also has the power to vary the £1,000 threshold.
Importantly, the discharge of an order under section 24 does not prevent further applications under sections 21 or 22, meaning a confiscation order may still be reconsidered in other contexts.
Key Difference Between Section 23 and Section 24
Section 23 allows for a variation of the confiscation order, reducing the balance where the available amount is inadequate.
Section 24 allows for a discharge of the order, but only if the balance is less than £1,000 and the inadequacy arises from specified reasons such as currency fluctuations.
Conclusion
Sections 23 and 24 of POCA provide mechanisms for dealing with situations where the defendant no longer has enough assets to satisfy a confiscation order. Section 23 permits a reduction of the order, while section 24, in very limited circumstances, allows for the order to be discharged completely.
