Confiscation and the family home
Confiscation and the family home

The following Corporate Crime practice note provides comprehensive and up to date legal information covering:

  • Confiscation and the family home
  • Matrimonial home and the calculation of the available amount
  • Divorce and the matrimonial home in confiscation

Matrimonial home and the calculation of the available amount

Although any restriction of the European Convention on Human Rights must be necessary and proportionate, Article 8, in particular, guarantees the rights to respect for private and family life, home and correspondence. Any interference in those rights must be 'necessary in a democratic society for the prevention of disorder or crime'. Article 8 is not engaged when the value of the family home is accounted as part of the available amount. Where there are no ancillary relief proceedings, the defendant’s matrimonial home or his share of it will be included in the available amount.

The fact that this causes hardship to the family when the home is sold to meet the order is not relevant to the calculation. This has been subject to challenge and has been found to be compatible with the Human Rights Act 1998. See Danison v UK (1998) Appln 45042/98 (not reported by LexisNexis®).

That said, a confiscation order must nevertheless be proportionate following Waya (see Practice Note: Proportionality in confiscation proceedings under POCA 2002).

A defendant cannot rely on the forced sale of the family home as a trump card rendering confiscation disproportionate (Parkinson and Reynolds). It may be relevant where the defendant suffers from a particular disability and the home has been specially adapted, however, the appropriate time for consideration of whether a family home must be

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