Part 2Confiscation: England and Wales

Reconsideration

22 Order made: reconsideration of available amount

(1)

This section applies if—

(a)

a court has made a confiscation order,

(b)

the amount required to be paid was the amount found under section 7(2), and

(c)

an applicant falling within subsection (2) applies to the Crown Court to make a new calculation of the available amount.

(2)

These applicants fall within this subsection—

(a)

the prosecutor;

F1(b)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)

a receiver appointed under section 50 F2....

(3)

In a case where this section applies the court must make the new calculation, and in doing so it must apply F3sections 9 and 9A as if references to the time the confiscation order is made were to the time of the new calculation and as if references to the date of the confiscation order were to the date of the new calculation.

(4)

If the amount found under the new calculation exceeds the relevant amount 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.

(5)

In deciding what is just the court must have regard in particular to—

(a)

any fine imposed on the defendant for the offence (or any of the offences) concerned;

(b)

any order which falls within section 13(3) and has been made against him in respect of the offence (or any of the offences) concerned and has not already been taken into account by the court in deciding what is the free property held by him for the purposes of section 9;

F4(c)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5(d)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F6(6)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)

In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.

F7(7A)

Section 11 applies in relation to a confiscation order when it is varied under this section as it applies in relation to a confiscation order when it is made (reading references to the making of the order as references to the varying of the order and references to the day on which the order is made as references to the day on which the order is varied).

(7B)

Where section 12 applies in relation to a confiscation order that has been varied under this section, the reference in section 12(3)(c) to the day on which the order was made is to be read as a reference to the day on which the order was varied.

(8)

The relevant amount is—

(a)

the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously;

(b)

the amount last found as the available amount in pursuance of this section, if this section has applied previously.

(9)

The amount found as the defendant’s benefit from the conduct concerned is—

(a)

the amount so found when the confiscation order was made, or

(b)

if one or more new calculations of the defendant’s benefit have been made under section 21 F8or 21A, the amount found on the occasion of the last such calculation.