On 1st June 2015, new law came into force – The Serious Crime Act 2015.
Tim Thompson of Kangs Solicitors examines the effects of this piece of legislation on POCA 2002, specifically, on the part of Section 1, entitled: “Determination of extent of defendant’s interest in property”.
Section 1 of the Serious Crime Act 2015
It is often the case that more than one person has an interest in an asset that forms part of Confiscation Proceedings against a Defendant.
For instance, a wife may have an equitable interest in the matrimonial home which she wishes to protect and prevent the Court making an order affecting the full equity in that property contrary to her matrimonial entitlement. If favorably determined by the court, the wife will retain her share of any proceeds arising from a sale.
Section 1 of the Serious Crime Act 2015, inserts a new Section into the Proceeds of Crime Act 2002 – Section 10A.
The Crown Court Judge now has the power to ‘determine’ what proportion of the asset, which is the subject of the litigation, is to be attributed to the defendant at the time the Confiscation Order is made.
The Court must now give any “interested person” (meaning any third party whom the court thinks has, or may have, an interest in the property) a reasonable opportunity to make representations as to the nature of their claim to it.
This has obvious benefits for the Defendant and the interested person as, prior to the Serious Crime Act coming into force, matters determining third party interests in an asset would not be resolved until a later stage when enforcement proceedings against the Defendant’s assets were underway.
Section 10A in practice | Proceeds of Crime Proceedings
At the commencement of Confiscation Proceedings, the Defendant is ordinarily required to serve a statement in accordance with Section 18, providing information about his assets.
The Defendant now would put forward assertions in his Section 18 concerning the extent of interests (if any) in assets in which any interested person has an interest. The Court should, therefore, be provided with details of:
- The asset
- The interested person
- The extent of the interest attributable to him and the interested person
The Court may thereafter send to the interested person an Order (s18A newly inserted), requesting provision of information regarding the asset(s) and the nature of the interest they wish to assert.
The Crown, again in the ordinary course of proceedings, is required to serve their statement in reply in accordance with Section 16 POCA 2002.
A mandatory requirement for the Crown, following the enactment of the Serious Crime Act 2015, is that they are now obliged to include any information known to them that they believe is relevant to any Section 10A determination.
Thereafter, it is for the Defendant to serve a Section 17 Statement.
Although there is no real change to the requirements and form that this Statement takes, it would be prudent for the Defendant to respond to any assertions and submissions advanced by the Crown in respect of any alleged interest of any interested person.
At the Confiscation Hearing the court will consider all of the various claims that remain disputed by the hearing of oral evidence.
The Section 10A Determination | POCA Lawyers
Once the Judge has heard all relevant arguments, he will determine, in making the Confiscation Order, the values attributable to both the Defendant and the interested person if all or part of the claim by that person is accepted by the Court.
How can Kangs help the ‘interested party’ | Confiscation Lawyers
An interested person claiming any interest in an asset that is the subject of Confiscation Proceedings is advised to seek independent legal representation.
At Kangs Solicitors, we are regularly instructed to represent interested persons to ensure that their interest is property protected.
It is of paramount importance that evidence to support any claim is obtained and clearly detailed within any Section 18A application.
We will advise you of the merits of any application and, if appropriate, we will proceed to represent you either in negotiations with the Crown or at the final Confiscation Hearing, thereby ensuring that your interests are properly represented.
Should you wish to discuss any matter that arises during Confiscation Proceedings / Proceeds of Crime Proceedings, our team of Confiscation Lawyers will be happy to help.