Transcript Restraint and Confiscation – A practical guide to the

Restraint and Confiscation – A practical guide to the
recovery of criminals' assets in the UK and overseas
ICC Fraudnet
Hilton Mauritius Hotel and Spa Resort
8th April 2010
David Ingram
Grant Thornton UK LLP, London
©2010 Grant Thornton UK LLP. All rights reserved.
Restraint and confiscation in the UK
• Brief history
• Current legislation
• Examples
• Significance to FraudNet members
• Questions
©2010 Grant Thornton UK LLP. All rights reserved.
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
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Current Legislation
Proceeds 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...
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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
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Confiscation Order
• Post conviction
• Benefit - actual
• Confiscation amount
– defendant's assets
– not restricted to obtained through criminality
– hidden assets
• Default sentence
• Time to pay
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What if the defendant is found not guilty?
• Civil recovery
• SOCA, RCPO (now CPS), CPS
• Failed prosecution
• Defendant out of jurisdiction
• Criminal lifestyle
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Civil Recovery - POCA style
• Introduced by POCA
• Property freezing order - ex parte
• Application for civil recovery
• Civil burden of proof
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Restraint, confiscation and third parties
• Rights of prior encumbrancers preserved
• SFO V Lexi
• s426 POCA
• Compensation Orders - Messrs. Darwin
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John and Anne Darwin
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Examples
• Restraint stage
– Selby
• Confiscation stage – Leaf
• Civil Recovery
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– 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
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Questions ?
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