GLOSSARY

realisable property definition

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What does realisable property mean?

property which can be sold for money.

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Codes of Practice under the Proceeds of Crime Act 2002

Codes of Practice under the Proceeds of Crime Act 2002 The government has published a series Codes of Practice (Codes) which provide guidance to investigators on the use of investigatory powers under the Proceeds of Crime Act 2002 (POCA 2002). These Codes are published under various provisions and provide guidance to the exercise of different powers. Since the first Code of Practice (in relation to cash searches) came into force on 16 December 2002, a number of iterations of that Code and additional new Codes have been introduced. Which version of the Codes apply, depends upon the date on which the powers in issue were used. The current versions of the Codes can be accessed here and all references to the Codes throughout this Practice Note are to these versions: • POCA 2002 Search, Seizure and Detention of Property Code of Practice (England and Wales) (January 2018)—made under POCA 2002, s 47S in connection with the carrying out by appropriate officers in England and Wales of the functions conferred by virtue of POCA 2002, ss 47C–47H, the carrying out by senior officers of their functions under section POCA 2002, s 47G and the detention of property under or by virtue of POCA 2002, ss 41A, 44A and 47J–47P. This applies to the exercise of all powers covered by the Code on or after 31 January 2018 • POCA 2002

Fraud—civil claim and private criminal prosecution compared

Fraud—civil claim and private criminal prosecution compared This Practice Note compares the key characteristics of pursuing a fraud claim either by way of a civil claim or a private criminal prosecution, including identifying the contrasts between the two procedures. It serves as a summary reference guide for practitioners who are considering the options for their client of either pursuing a civil claim for fraud or a private prosecution (or potentially both in parallel). For general guidance on civil fraud claims see: Civil fraud—overview and in particular: • Practice Note: Civil fraud—heads of claim • Practice Note: Starting a civil fraud claim—a practical guide • Considerations and next steps for victims of fraud—checklist For general guidance on fraud in the criminal context and pursuing a private prosecution, see: • Fraud offences—overview • Private prosecutions—overview • Practice Note: Private prosecutions—an introductory guide • Practice Note: Bringing a private prosecution—practical considerations • Pros and cons of bringing a private prosecution—checklist This Practice Note is not concerned with specific insolvency related statutory offences under the Companies Act 2006, Insolvency Act 1986 and Fraud Act 2006 (FrA 2006) with regard to fraudulent or wrongful trading and misfeasance. Issues to consider Civil fraud claim Criminal fraud prosecution Definition and source ‘Fraud’ may be defined as the deliberate or intentional use of misrepresentation, deception or dishonesty to deprive, in order to make a gain or achieve an advantage for someone or

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What is meant by the phrase ‘piercing the corporate veil’?

What is meant by the phrase ‘piercing the corporate veil’? A properly formed registered company is a separate legal entity from its shareholders and has separate rights and liabilities as a separate legal person. This principle is colloquially described as the corporate veil or the Salomon principle, being most famously stated by Lord MacNaghten in the case of Salomon v Salomon: The company is at law a different person altogether from the subscribers to the memorandum; and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers or trustee for them. Nor are the subscribers as members liable, in any shape or form, except to the extent and in the manner provided by the Act. A company, as a separate legal entity, continues to exist irrespective of changes to its membership. It owns its assets and is responsible for its own liabilities. A company's separate legal personality exists for so long as it is registered. The continuing existence of a company may be terminated by its liquidation and subsequent removal from the register. Therefore, in the normal course of events, a company’s assets would not constitute the realisable property of any individual defendant. In order for the company’s assets to

What is the procedure required for an enforcement receiver, appointed in the Crown Court to enforce a confiscation order obtained under the Proceeds of Crime Act 2002, to obtain possession of a house belonging to the defendant when there are unknown occupiers (not the defendant) in the property?

What is the procedure required for an enforcement receiver, appointed in the Crown Court to enforce a confiscation order obtained under the Proceeds of Crime Act 2002, to obtain possession of a house belonging to the defendant when there are unknown occupiers (not the defendant) in the property? Legislation If a confiscation order is not satisfied, the prosecution may ask the Crown Court to appoint an enforcement receiver, under section 50 of the Proceeds of Crime Act 2002 (POCA 2002), if the following conditions are met: • a confiscation order is made • it is not satisfied, and • it is not subject to appeal Once an enforcement receiver is appointed under POCA 2002, s 50, the prosecutor may invite the court to confer powers on the receiver in relation to the defendant’s realisable property under POCA 2002, s 51. The court may make the following orders under POCA 2002, s 51(2): • power to take possession of the property • power to manage or otherwise deal with the property • power to realise the property, in such manner as the court may specify • power to start, carry on or defend any legal proceedings in respect of the property Under POCA 2002 s 51(5), the court may order any person who has possession of the realisable property to give possession of it to the receiver. This does not include tenants protected by contract and/or statute

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Pensions in confiscation proceedings (R v Asplin)

Corporate Crime analysis: R v Asplin and others was a rare case in which the Court of Appeal revisited matters upon which it had already ruled. The appeal concerned confiscation proceedings under the Criminal Justice Act 1988 (CJA 1988). The court was asked to address (i) whether the appellants’ occupational pensions formed part of their ‘realisable assets’ for the purposes of confiscation and (ii) if so, whether the pension figures to be included should be calculated gross or net of tax. The defendants were convicted of conspiring to defraud their employer, DAS Legal Expenses Insurance Company Ltd (DAS), an insurance company, which brought a private prosecution. The defendants were entitled to benefits under the company pension scheme. The trustees of the scheme had a power to forfeit (in whole or part) a member’s pension where they owed money to DAS ‘as a result of their criminal, negligent or fraudulent act or omission’. Where the trustees had not yet decided whether to exercise powers to forfeit, the court considered that the defendants retained a beneficial interest in the scheme. It followed that the pensions formed part of their ‘realisable assets’ as defined by CJA 1988, s 74(1). The value of the pension rights (CJA 1988, s 74(4)) was the gross ‘cash equivalent transfer value’ (CETV). Written by Rachel Clark, barrister at 33 Chancery Lane.

No inadequacy for defendant with unexplained hidden assets (O’Connor v CPS)

Corporate Crime analysis: The defendant, who had been convicted of fraud and against whom a confiscation order had been made against him in the sum of £4,257,008 in September 2007 failed in his application to the High Court for a Certificate of Inadequacy. This case demonstrates that a defendant cannot simply state that they no longer have ‘hidden’ assets, but rather must explain what happened to them. Written by James Fletcher, barrister at 5SAH.

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