Following conviction, a defendant may well face confiscation proceedings under the Proceeds of Crime Act 2002 (‘POCA’).
The defendant will be required to repay such sum as is determined by the Crown Court and ordered to be paid by a Confiscation Order.
Strict time limits are imposed for payment of the amount required by the Confiscation Order which may well necessitate the defendant, or a third party, having to sell such assets, being for example, property, jewellery or motor vehicles, as is necessary to repay the amount ordered.
It frequently arises that a defendant has disposed of one or more assets in circumstances where they are regarded by the investigating authority as being ‘tainted’.
What is A Tainted Gift? | Kangs POCA Advisory Team
- Sections 77 and 78 of POCA allow the Crown Court to find that a gift made by a defendant to a third party is ‘tainted’ and should be deemed an asset available for sale by the defendant in order to discharge, either fully or in part, the debt arising under their Confiscation Order.
Such a situation will occur where:
- the defendant is found to have a ‘criminal life style’ and the gift was made within six years from the ‘relevant date’, as determined by the POCA proceedings.
- it is made at any time and was property obtained as a result of the defendant’s general criminal conduct.
- Monies transferred to third parties from funds not connected to the criminal case can still be deemed as a ‘tainted gift’ when regarded as an attempt by the defendant to frustrate the proceedings by minimising the assets available in order to discharge the POCA debt.
Third Party Recipients of Tainted Gifts | Kangs POCA Team
- It sometimes occurs that the innocent and unaware recipient of a tainted gift may find that the monies or asset received subject to a Restraint Order which prevents any disposal or transfer of such asset.
- In such circumstances the recipient of such a ‘tainted gift’ should seek legal advice as a matter of urgency as any legitimate claim may be placed before the court explaining the circumstances of the receipt of such asset.
How Can We Help? | Kangs National POCA Team
Kangs Solicitors is ranked nationally for POCA and asset forfeiture work. The team is lead by Hamraj Kang, with the Chambers & Partners Directory quoting;
“Hamraj Kang is a standout lawyer for POCA work. His technical knowledge is impressive, combined with his passion and client care”
“Kangs has a team of POCA lawyers with considerable experience and strength in depth. The high quality multi-million pound work that the firm is regularly instructed in, is indicative of the high-quality lawyers that work in the team”
Our POCA team can assist with the following:
- POCA Proceedings
- Appealing confiscation orders
- Section 23 POCA Applications (to vary the available assets figure after a Confiscation Order has been made)
- Advising third parties who are made subject to Confiscation Orders or Restraint Orders
- Representation in relation to pre-charge and post-charge restraint proceedings
- Cash seizure and forfeiture
Who Should I Contact For Assistance? | Kangs Criminal Defence Solicitors
If you are subject to Confiscation proceedings, a Restraint Order or any other application pursuant to the Proceeds of Crime Act 2002, please do not hesitate to contact one of the following for an initial consultation: