The article posted to this website on 10 July 2020 entitled ‘Confiscation Orders | The Assumptions’ focused upon various factors considered when ascertaining the amount to be repaid by a convicted defendant as the result of financial gain received by that person arising from the criminal conduct committed.
A further aspect often falling to be considered by a court is whether or not a gift made by the defendant was ‘tainted’ [a ‘tainted gift’] and this issue was recently considered by the Court of Appeal in the case of R v Thakor  EWCA Crim 541.
Amandeep Murria of Kangs Solicitors comments upon the position generally.
Our Specialist Confiscation Team at Kangs Solicitors advises clients upon this very issue along with all other aspects of Confiscation Proceedings under the Proceeds of Crime Act 2002 (‘POCA’) on a daily basis.
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We appreciate any client seeking to vary or challenge a confiscation, restraint or cash seizure order requires immediate specialist legal advice and assistance.
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The Law | Tainted Gifts | Kangs Confiscation Solicitors
Sections 77 and 78 of POCA provide for tainted gifts and by way of summary:
- A tainted gift arises where a transfer of property was made any time after the relevant day and
- the consideration for the transfer was significantly less than the value of that property thereby, effectively, amounting to the making of a gift.
The relevant day is the first day of the period of six years ending with the day when proceedings for the offence concerned were started; or
if there were two or more offences and proceedings for them were started on different days, the earliest of those days.
R v Thakor | Recent Court of Appeal Decision | POCA Solicitors
- Having pleaded guilty to offences under the Social Security Administration Act 1992, the appellant was subjected to POCA proceedings which resulted in his benefit figure being assessed at £51,682.96 with the available amount being £26,500.
- The appellant’s wife had pleaded guilty to similar offences and she settled the amount payable in her Confiscation Order.
- The judge concluded that money totalling £52,000 which had previously been held in a joint account but was then transferred into an account solely in the wife’s name was available to the appellant but he restricted the available amount to £26,000.
- The appellant appealed to the Court of Appeal claiming that following the transfer to his wife the funds were no longer available to him and should not form part of the available amount.
The Court of Appeal Decision:
The Court of Appeal dismissed the appeal concluding that:
- the appellant had made a tainted gift because he assented to the transfer of the funds from the joint account to the sole account and
- furthermore, the transfer of the funds from the joint account to the sole account was captured within the six year rule pertaining to tainted gifts.
How Can We Help? | Kangs Criminal Defence Solicitors
If you are subject to a Confiscation Order and are concerned that you may not be able to meet your obligations as the result of the value of your assets being inadequate, please feel free to contact the team at Kangs Solicitors which has a wealth of experience in all aspects of POCA proceedings.
We are here to assist and happy to provide an initial no obligation consultation at our offices in London, Birmingham and Manchester or by telephone/video conferencing.