S.23 of PoCA gives a Defendant an opportunity to persuade the Crown Court that their available amount is inadequate for payment of any amount remaining to be paid under their confiscation order. S.23 is a key safeguard for a Defendant.
S.23 is not a second bite of the cherry that can be used to cure deficiencies in the case originally put before a Crown Court or to protest that the available amount originally ordered by the Crown Court was incorrect. That would be an abuse of process. Such efforts should be directed to the Court of Appeal, Criminal Division.
A S.23 application should be restricted to post-order events and should take account of the Defendant’s entire asset and financial position at the time the Crown Court is invited to make the re-calculation. As such, if a Defendant can demonstrate that a property has been repossessed or is in substantial negative equity, or that a company is in liquidation and the final balance of the liquidation is a substantial deficit, then the Court might well be persuaded that an inadequacy has arisen; however, it does not automatically follow that the Court will be satisfied to vary the original order downwards. This is especially so if the original order included a finding of hidden assets: the Defendant would be required to persuade the Court that an inadequacy had arisen in relation to identified assets and that the Defendant did not have hidden assets up to the value of that inadequacy. The difficulty faced by Defendant’s with a finding of hidden assets cannot be overstated.
In a recent case, IKP Solicitors acted for a Defendant who succeeded in persuading the Court that an inadequacy had arisen in relation to several identified assets, without the Defendant having sold those assets; however, the Court was not persuaded that the extent of the Defendant’s hidden assets had been fully revealed and declined to vary the amount of the original confiscation order.
The distinction between S.23 applications and Appeals although outwardly simply is often misunderstood, resulting in S.23 applications being brought which are doomed to failure. It is imperative that Defendants are represented by genuine PoCA experts.
The PoCA and Financial Crime department at IKP Solicitors, led by James O’Hara and Paul O’Donnell, regularly accept instructions to act in S.23 applications on a private basis. In some circumstances, legal aid funding may be available. Both James and Paul possess the necessary subject matter expertise to assist Defendant’s and compliments his expertise with a bank of trusted expert Counsel and consultants. James and Paul are members of an elite group of Solicitors in the UK ranked by Chambers and Partners in the area of ‘PoCA Work & Asset Forfeiture’.