Part 7Criminal memoirs etc

Exercise of power to make orders

164The available amount

(1)

The available amount is the total of—

(a)

the value of the respondent's relevant assets,

(b)

to the extent that any benefits identified in the order are benefits secured for a person other than the respondent, the value of those benefits, and

(c)

the value (at the time the exploitation proceeds order is made) of such relevant gifts (if any) as the court considering making the exploitation proceeds order considers it just and reasonable to take account of in determining the available amount.

(2)

The value of the respondent's relevant assets is the total of the values (at the time the exploitation proceeds order is made) of all the free property then held by the respondent, reduced by the total amount payable in pursuance of obligations which then have priority.

(3)

Property is free unless an order or notice (as the case may be) is in force in respect of it under any of these provisions—

(a)

section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders);

(b)

Article 11 of the Criminal Justice (Northern Ireland) Order 1994 (S.I. 1994/2795 (N.I. 15)) (deprivation orders);

(c)

Part 2 of the Proceeds of Crime (Scotland) Act 1995 (c. 43) (forfeiture of property used in crime);

(d)

section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) F1or Chapter 4 of Part 7 of the Sentencing Code (deprivation orders);

(e)

section 23, 23A or 111 of the Terrorism Act 2000 (c. 11) (forfeiture orders);

(f)

section 245A, 246, 255A, 256, 266, 295(2) or 298(2) of the Proceeds of Crime Act 2002 (c. 29) (freezing, interim receiving, prohibitory, interim administration, recovery, detention and forfeiture orders);

(g)

section 297A of the Proceeds of Crime Act 2002 (c. 29) (forfeiture notices).

(4)

An obligation has priority if it is an obligation of the respondent—

(a)

to pay an amount due in respect of a fine or other order of a court which was imposed or made on conviction of an offence and at any time before the time the exploitation proceeds order is made, or

(b)

to pay a sum which would be included among the preferential debts (or preferred debts) if the respondent's bankruptcy (or sequestration) had commenced on the date of the exploitation proceeds order or the respondent's winding up had been ordered on that date.

(5)

If the respondent transfers property to another person for a consideration the value of which is significantly less than the value of the property at the time of the transfer, the respondent is to be treated as making a gift of the difference in value between the value of the property transferred and the consideration given in respect of it.

(6)

In this section—

“preferential debts” has the meaning given by section 386 of the Insolvency Act 1986 (c. 45);

F2“preferred debts” has the meaning given by section 129(2) of the Bankruptcy (Scotland) Act 2016;

“relevant gift”, in relation to an exploitation proceeds order, means a gift made by the respondent on or after the day on which the respondent first derived any of the benefits identified in the order under section 155(4)(b).