Posted: 21 / 02 / 2018
The revisiting of old confiscation orders by prosecutors under section 22 Proceeds of Crime Act 2002 is becoming more frequent but as yet few variations made under s22 have been appealed.
In stark contrast to the position when a confiscation order is first made, on an s22 revision the court – in other words, the judge – has discretion concerning what variation to make to the original confiscation order and even whether to refuse to make any variation at all.
Section 22 is headed “Order made: a reconsideration of an available amount”.
Reconsideration of available amount
Section 22 PoCA 2002 empowers the Crown Court to vary an existing confiscation order made under s6 of the Act. In effect it allows the prosecution to apply to the court for a further payment to be required from the defendant under an existing confiscation order where his available amount has increased since the original order was made.
At that time the court would not have ordered him to pay the full amount of his benefit
We are considering the position of a defendant who was made subject to a confiscation order, perhaps some years ago, and the court ruled then that he had a figure of benefit which was higher than his available amount. At that time the court would not have ordered him to pay the full amount of his benefit. Instead, the amount he was then ordered to pay would have been restricted to his available amount at that time. The figures of the defendant’s benefit, available amount and the amount he was ordered to pay should all be spelt out in the original confiscation order.
Under s22 the prosecutor returns to court and asks it to consider the available amount which the defendant has now and to order him to pay a further amount now towards his total benefit.
But the court is required under s22(4) to do what “it believes is just”. In the case of Padda v R  EWCA 2330 the Court of Appeal noted, at para  that it is entirely appropriate on an s22 application for the court to bear in mind any “consideration which might properly be thought to affect the justice of the case”.
At the same time, the court must have regard to the underlying policy behind confiscation – that offenders should be stripped of the benefit of their offending.
So could there ever be a case where the court would simply refuse the prosecution’s application to order the defendant to pay a further amount?
Mr Mundy’s case
Ian Mundy had been convicted in Cardiff Crown Court in 2008 of drugs offences (involving cocaine and cannabis) and money laundering. He had been subject to confiscation with a benefit of £172,365 and an available amount of £9,275. He was ordered to pay £9,275 and did so by 19 March 2009.
There was, therefore, an excess benefit of £163,090 which Mr Mundy had never been ordered to pay.
In 2016 or 2017 it came to the attention of prosecutors that the property owned by Mr Mundy (which had a negative equity in 2008) now had a positive value. In addition, Mr Mundy now had a car, a van and two motorcycles and had over £8,000 in bank accounts. He seemed an ideal candidate for an s22 application.
A restraint order was obtained on 21 February 2017 and an s22 application was lodged on 26 May 2017. The Crown sought a further payment of £29,791. Mr Mundy disputed the Crown’s valuation of his assets and, following exchanges of documents, the Crown reduced its figure to £22,061. Mr Mundy put the figure at only £2,561 arguing, amongst other things, that the monies in the bank accounts were to pay for various items and to support his family. He said the motorcycles had little value and were his hobby; the van was used for work; the car was jointly owned with a third party and the value placed on the property was excessive.
The application was heard on 13 September 2017. The Crown Court judge refused to order that Mr Mundy pay any further amount. The judge said, “I have read the application and the information in support of the application to make the order. I have also read the detailed response to the section 22 application in which the explanation is provided on behalf of the defendant, firstly, to the circumstances in which he acquired the various vehicles and also the circumstances and the use to which the savings which were gathered were to be put. I have absolutely no doubt that it would not be justified in these circumstances to make the order under section 22 and I decline to do so.”
The Crown appealed.
The Court of Appeal heard the case in January 2018, R v Mundy  EWCA Crim 105.
On appeal, the court noted that what was “just” required a consideration of what was “just” for the prosecution as well as for the defendant. The court noted that the judge in the Crown Court had expressly referred to the public interest in confiscating the proceeds of crime.
The court considered that the judge’s reasoning had been rather too “abbreviated”. At para  it remarked “If the judge had gone through the list and given brief reasons for rejecting each element in it, and if he had added that there must be an element of proportionality in the disposition of court resources, then we doubt there could have been any proper basis for challenging the order. Judges are entitled summarily to dismiss applications that they regard as being substantially without merit, but the Crown had spent considerable time and effort preparing for the application and both it and the public were entitled to know why the judge rejected the application.”
But the Court of Appeal went on to conclude that the Crown Court judge had the discretion to refuse to vary the order and that on the facts it was properly open to him to do so in Mr Mundy’s case. The court dismissed the prosecution’s appeal.
It follows that – at least for now – Mr Mundy is not required to pay anything further under the confiscation order.