The Available Amount in Confiscation Proceedings
When you are party to confiscation proceedings, an available amount will be set as well as a benefit figure. You will be ordered to repay the lower of these two amounts.
A Crucial Distinction
It is important to note that the available amount is not the amount available. Despite the terms being similar, they are not interchangeable.
Available amount is a legal term given a specific meaning under the Proceeds of Crime Act 2002. The available amount is:
(a) the total of the values (at the time the confiscation order is made) of all the free property then held by the defendant minus the total amount payable in pursuance of obligations which then have priority, and
(b) the total of the values (at that time) of all tainted gifts.
In everyday English, the available amount is the total of all assets (minus any liabilities secured on those assets, such as a mortgage), plus the value of any tainted gifts.
Setting the Available Amount
In confiscation proceedings, the burden is on you as the defendant to prove that your available amount is lower than the benefit figure.
Information will be provided from the prosecutor in a s16 statement, however it is for you to examine this information and, if it is not correct or complete, to provide the full and correct information.
Without this full and frank information from you, the Court may simply order that you pay the whole of the benefit figure. This is because the Court’s view, as set out in the case of R-v-Barwick  EWCA Crim 3551, is that the benefit amount will be assumed to be available until you prove otherwise. It is vital that this is challenged by expert solicitors. You should not simply accept the figure put forward by the Prosecution.
Is It Possible to Appeal Against an Available Amount?
It is possible to lodge an appeal on the basis that a Crown Court judge has erred when determining what the available amount is. Naturally, this is a complex area of law and you should seek specialist help from a lawyer with a full understanding of Proceeds of Crime and confiscation order proceedings. We have that experience and are the experts you need. Call us now on 01623 397200.