Paul Gallagher, Head of our Crime Department, explains what it means and what to do if you receive correspondence from the Crown Prosecution Service relating to a Section 22 Application under POCA. 

Under Section 22 the prosecution at any time may re-visit a confiscation order that has been imposed upon the defendant. We are seeing an increase in these applications. 

Defendants may have had confiscation orders made against them many years ago because of convictions for certain offences primarily in relation drug supply (Encro)/fraud offences etc. At the time the confiscation order was imposed the Defendants’ realisable amount to meet a confiscation order would likely be significantly less than the benefit figure ordered as part of confiscation. For example, a benefit/confiscation amount could be hundreds of thousands of pounds but a nominal order at the time was made in the sum of £1, or whatever assets the defendant had at the time. 

The Police and NCA can and often will revisit large confiscation cases and undertake a further financial background check on defendants many years after the original confiscation was ordered. If a defendant is found to have gained assets (legitimate or otherwise) which would potentially reduce the outstanding confiscation figure, the Prosecution will issue a Section 22 Application. A separate application to restrain or freeze assets is usually made without notice. 

Initially the prosecution will send you an application to vary the original confiscation order pursuant to Section 22 POCA. The application will be supported by a witness statement from a Financial Investigator of the Economic Crime Unit. The statement will often outline the defendants’ current financial circumstances including available amounts in properties and bank accounts etc.    

The Section 22 application is based upon the assertions made by the financial investigator which can often be inaccurate or exaggerated. If a defendant takes no issue with the Section 22 application, then the Court will vary the order administratively. The Defendant will then have to pay the outstanding amount due within a specified period or a default prison sentence will be imposed. 

It is essential that you seek independent legal advice urgently when a Section 22 Application is made.