Determining the recoverable amount (benefit and available amount) under POCA 2002
Produced in partnership with Quinton Newcomb of Fulcrum Chambers
Determining the recoverable amount (benefit and available amount) under POCA 2002

The following Corporate Crime guidance note Produced in partnership with Quinton Newcomb of Fulcrum Chambers provides comprehensive and up to date legal information covering:

  • Determining the recoverable amount (benefit and available amount) under POCA 2002
  • The value of the benefit under POCA 2002
  • The value of benefit on joint enterprise cases
  • Determining the available amount
  • Determining the defendant's and third party interests in property (POCA 2002, s 10A)
  • Making the confiscation order

If the court decides the defendant has benefited from general or particular criminal conduct, it must then determine the 'recoverable amount'. The starting point is that the recoverable amount is the amount equal to the defendant's benefit from the conduct concerned. For these purposes, the court will ignore any property which is subject to a civil recovery order or a forfeiture agreement, notice or order pursuant to the relevant powers under Part 5 of the Proceeds of Crime Act 2002 (POCA 2002). Subject to this, the court will make an order for an amount equal to the defendant's benefit from the conduct concerned, unless the defendant can prove that the ‘available amount’ (that is the amount of their assets) is worth less than the benefit figure, whereupon the defendant’s ‘available amount’ becomes the recoverable amount.Proceeds of Crime Act 2002, ss 6(5), 7(1)

If the court considers that it would be disproportionate to order the defendant to pay the recoverable amount, then the court has the ability to not make the order. The Supreme Court in R v Waya ruled that the obligation on a Crown Court to make a confiscation order for the full recoverable amount should be qualified so it would not apply where to do so would be disproportionate under Article 1, Protocol 1 of the European Convention on Human Rights (ECHR) (the right to the peaceful enjoyment of property).POCA 2002, s 6(5)R v Waya [2013] 1 AC 294

The court need not decide the recoverable amount and make a confiscation order if it believes any victim of the conduct has started, or intends to start, proceedings against the