Restraint and confiscation in the UK

©2010 Grant Thornton UK LLP. All rights reserved.

Restraint and Confiscation – A practical guide to the recovery of criminals' assets in the UK and overseas

ICC FraudnetHilton Mauritius Hotel and Spa Resort

8th April 2010

David IngramGrant Thornton UK LLP, London


Restraint and confiscation in the UK

• Brief history

• Current legislation

• Examples

• Significance to FraudNet members

• Questions


A brief history of restraint and confiscation

• Drug Trafficking Offences Act – 1986

• Criminal Justice Act – 1988

• Drug Trafficking Act – 1994

• Proceeds of Crime Act – 2002


Current LegislationProceeds of Crime Act 2002 - "POCA"

• Criminality post 24 March 2003

• Agencies– Crown Prosecution Service - CPS– Serious Organised Crime Agency - SOCA– Serious Fraud Office - SFO

• Department of Work and Pensions• OFT• FSA• Department of Environment• Office of Fair Trade• The Royal Mail...


Application for a Restraint Order

• May seek restraint order as soon as criminal investigation has commenced

• Crown Court - POCA

• Must demonstrate that if successful prosecution there will be application for Confiscation Order

• Will need to stipulate value of assets to be restrained

• Creates an interest in property c/w freezing order


Confiscation Order

• Post conviction

• Benefit - actual

• Confiscation amount– defendant's assets– not restricted to obtained through criminality– hidden assets

• Default sentence

• Time to pay


What if the defendant is found not guilty?

• Civil recovery

• SOCA, RCPO (now CPS), CPS

• Failed prosecution

• Defendant out of jurisdiction

• Criminal lifestyle


Civil Recovery - POCA style

• Introduced by POCA

• Property freezing order - ex parte

• Application for civil recovery

• Civil burden of proof


Restraint, confiscation and third parties

• Rights of prior encumbrancers preserved

• SFO V Lexi

• s426 POCA

• Compensation Orders - Messrs. Darwin


John and Anne Darwin


Examples

• Restraint stage – Selby

• Confiscation stage – Leaf

• Civil Recovery – Pickering


Significance of this area of UK law to FraudNet members

• UK – PCB ref Stannard

• Ireland – Arthur Cox ref Leaf

• USA – Astigarra Davis - Davison

• UAE – Hadef - various

• BVI – Walkers - various

• France – Lebray - Stannard


Questions ?

Restraint and confiscation in the UK

Documents

Transcript of Restraint and confiscation in the UK