One of the very real difficulties that can arise in confiscation proceedings is that third parties become involved, especially if it is asserted that they are the recipients of “tainted gifts”. The use of the term “gift” could be misleading, as it can include a sale at a (significant) undervalue.
If the defendant has been found to have a criminal lifestyle then the tainted gift provisions will catch gifts made at any time in the period beginning 6 years before the date of commencement of the proceedings, or at any time at all if it can be shown that the property gifted was obtained as a result of, or in connection with general criminal conduct, or which represented in the defendant’s hands property obtained as a result of or in connection with his general criminal conduct.
However, if the defendant has not been found to have a criminal lifestyle the court will be concerned with calculating the defendant’s particular criminal conduct which means that the court will be concerned with a gift made by the defendant at any time after the date on which the offence was committed.
Completely innocent parties could be drawn into the confiscation proceedings if, for example, property was purchased at what was thought to be a fair price but which a prosecutor later, and with the benefit of hindsight, perceives as having taken place at an undervalue. A great deal of expense can be incurred by completely innocent parties and it is unlikely that that expense could be recovered from the prosecuting authority even if it is shown that the prosecutor was completely at fault.
Another area of concern can arise with regard to the matrimonial home, assuming it is in joint names. Arguments may arise on the part of the prosecutor that the wife has not in fact acquired an equitable interest in the home that escapes these provisions. This is not however an argument that should be given up lightly by a spouse.
For defendants a problem is that once the court decide a gift is tainted then the value is included in the ‘recoverable amount’ figure whether or not it is actually recoverable from the recipient of the gift.
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