Part 1: Proceeds of crime Other miscellaneous provisions Section 33: Confiscation investigations: determination of the available amount
Section 33 amends section 341(1) of POCA to extend the definition of a confiscation investigation so as to include the ability to investigate the amount available to a defendant for satisfying a confiscation order. This amount is known as the "available amount" and is the value of all of the defendant’s property, minus certain prior obligations of the defendant’s such as earlier fines, plus the value of all tainted gifts made by the defendant (see sections 9 and 77 of POCA). In considering the value of the confiscation order made against a defendant, the court will set an amount equivalent to the defendant’s benefit from their crime(s) unless the "available amount" is shown to be less, and in those cases the defendant is ordered to pay that lesser amount.
	The extension of investigation powers allows the police and others to test the "available amount" claimed by a defendant. Under section 7(2) of POCA, the defendant is required to prove to the court that the available amount to settle a confiscation order is less than the benefit figure. The amendment also allows the police and others to investigate the financial position of a defendant in cases of a reconsideration under section 22 of POCA. Section 22 applies where the court made a confiscation order in an amount lower than the defendant’s assessed benefit because there was insufficient property at that time to satisfy an order in the full amount. An application can be subsequently made to the Crown Court for the court to recalculate the available amount in cases where the defendant is known to have obtained further property that could be used to satisfy a confiscation order up to the value, as previously assessed by the court, of the benefit they made from their criminality.
	When calculating the amount that is available for a confiscation order, a court will take account of the factors in section 9 of POCA and will make a determination of the available amount based on the evidence provided. If a revisit is sought under section 22 of POCA by a relevant applicant, the court must make a new calculation of the available amount by applying section 9 as if it were making a determination at the time of the original order. It is then for the court to determine in all the circumstances whether to vary the confiscation order (see section 22(3)).
	This amendment has the effect that investigatory powers in Part 8 of POCA can be used to obtain evidence in support of an application under section 22, to enable the court to reapply section 9 as required.