Revisiting the Available Amount—Confiscation of Post-Acquired Legitimate Assets
| Author | Gavin A. Doig |
| DOI | 10.1350/1740-5580-78.2.110 |
| Published date | 01 April 2014 |
| Date | 01 April 2014 |
| Subject Matter | Court of Appeal |
The Journal of Criminal Law
110
Revisiting the Available Amount—
Confiscation of Post-acquired Legitimate Assets
R v Padda (Gurpreet Singh) [2013] EWCA Crim 2330
Keywords Proceeds of crime; Revisiting available amount; Confiscation
orders
The appellant (P) appealed against a confiscation order made on a
reconsideration of his assets. He had pleaded guilty to eight offences of
supplying drugs in 2006 and was sentenced to a term of five years’
imprisonment. A confiscation order was made under the Proceeds of
Crime Act 2002 (POCA) on 22 September 2006. The judge ruled that P’s
benefit from his offending had been £156,226.74. The available amount in
realisable assets at the time was £9,250, and, accordingly, the confiscation
order was made in that sum.
P was released from prison in November 2008. P obtained legitimate
employment and, through it, a range of contacts in the car hire business.
He set up his own business in 2010 called ‘Hire Me a Car’. In May 2011 he
formed a limited company. The business venture was profitable. In early
2012 the Crown learnt of P’s newly acquired assets and applied under
s. 22 of POCA for a reconsideration of the available amount. It was accepted
from the outset that this was not a case where P had concealed assets at
the time of the original order. The case proceeded on the accepted basis
that the assets were legitimate and acquired after P’s release from custody.
The outstanding balance on P’s confiscation order was £146,706.04.
The Crown identified £103,162.41 of assets available to meet part of the
outstanding balance. The ‘assets attributable to the company “Hire Me a
Car Ltd” ’ were explicitly excluded from the Crown’s claim.
Section 22 of POCA applies where the court made a confiscation order,
but the available assets of the defendant at the time of the order were
insufficient to meet the benefit figure in full. If the prosecution subsequently
believes that the defendant has further assets, the court can be asked to
revisit the order and make a fresh assessment. If the court is persuaded
that further assets can be identified, s. 22(4) provides:
… the court may vary the order by substituting for the amount required to be
paid such amount as—
(a) it believes is just, but
(b) does not exceed the amount found as the defendant’s benefit from the
conduct concerned.
In the instant case the defence conceded that the Crown was entitled to
make the application, and that the court was required to make the new
calculation, but contended that an increase in the sum to be paid by P
would be unjust. Rehabilitation of offenders should be encouraged. P had
set up a legitimate business and made no effort to hide or conceal his
assets. What is ‘just’ (s. 22(4)(a)) should take into account these features.
The defence further contended that, as the application was subject to
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