Once the court decides that the defendant has benefited from general criminal conduct, or even particular criminal conduct, the court must then assess the recoverable amount.
The recoverable amount starts off as the figure that the court has decided is the defendant’s benefit from the conduct concerned. However, if the defendant proves that the available amount is less than the benefit figure then the recoverable amount will be assessed as that available amount. If there is nothing that can be made available then a nominal Order will be made.
In general terms the available amount will include the total value of all of the defendant’s free property at the time the Confiscation Order is made, less the total value of any obligations that have priority together with the total value at the time the Order is made of any tainted gifts. The real problems for defendants arise when the Crown or the Judge start to assert that there are hidden assets. These, whether they exist or not, will be valued and added to the recoverable amount figure. If the assets do not exist then the defendant will have to serve a period of imprisonment in default of payment.
The court will set a time to pay. The period will be up to 6 months. It can be much shorter where, for example, the property is in the form of cash held by the police.
The period can be extended for up to a further 6 months on application by the defendant.
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