Third party interests in Proceeds of Crime Act proceedings
The law relating to the confiscation of proceeds of crime is complex and gives the state extensive powers. Third parties, who have not themselves been convicted of an offence, can get drawn into what can be an oppressive process.
What does the law say?
The Proceeds of Crime Act 2002 (‘POCA’) empowers the Crown Court to order the confiscation of a convicted defendant’s assets. This is done by making a confiscation order, which can be applied for by the prosecution, or made where the Court believes it is appropriate to do so.
In simple terms, this process involves the Court first deciding whether the defendant benefitted from their criminal conduct and, if so, deciding the value of that benefit. This value is known as the ‘recoverable amount’.
If the defendant’s assets exceed the recoverable amount, then the Court will make a confiscation order for the value of the recoverable amount. If the value of defendant’s assets is less than the recoverable amount, then the court will make a confiscation order for the value of the ‘available amount’ (which is the value of the defendant’s assets).
The Court may then order confiscation of the defendant’s share in an asset owned jointly by the defendant and a third party.
What are my rights as a third party in confiscation proceedings?
The Court may, by section 10A(1) POCA, determine the extent of defendant’s interest in any property which is held by them and a third party, and which is likely to be realised to satisfy a confiscation order. If the Court thinks that a third party has an interest in such property, then it must – by s. 10A(2) POCA – give that third party reasonable opportunity to make representations about it.
Where the Court is considering the defendant’s interest in jointly owned property such as the matrimonial home, it can order the third party – or ‘interested party’ – to provide a statement of information detailing their interest in the property under s. 18A POCA. As a third party, establishing an interest in property potentially subject to a confiscation order calls for detailed and careful preparation, and expert legal advice in this technical and sometimes oppressive area of law.
If you have an interest in property jointly with someone who may be subject to confiscation proceedings, please contact Steve Garratt or Tom Airey in our Crime and Regulatory Department who will be happy to assist.