Tainted gifts in confiscation proceedings

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

  • Tainted gifts in confiscation proceedings
  • Tainted gifts
  • What constitutes a tainted gift, as opposed to a transfer of property?
  • Competing third party interests in property alleged to be a tainted gift
  • Valuing a tainted gift
  • Valuation of property transferred as gifts
  • Gifts that have been converted into something else
  • Gifts which no longer have a value
  • The role of the recipients of tainted gifts
  • Tainted gifts and the family home
  • More...

Tainted gifts in confiscation proceedings

Tainted gifts

A tainted gift is a category of asset that is added to the value of the property calculated to be held by the defendant for the purposes of identifying the recoverable amount in confiscation proceedings.

Realisable property, that is, property which is recoverable and available to the defendant and can therefore be used to calculate the recoverable amount for the purposes of a confiscation order, is defined in section 83 of the Proceeds of Crime Act 2002 (POCA 2002) as:

  1. any free property held by the defendant, and

  2. any free property held by the recipient of a tainted gift

See Practice Note: Determining the recoverable amount (benefit and available amount) under POCA 2002.

Property for the purposes of confiscation is defined as:

‘...all property wherever situated and includes—

(a) money;

(b) all forms of real or personal property;

(c) things in action and other intangible or incorporeal property’

Therefore, for the purposes of making a confiscation order under POCA 2002, it is possible for the court to take into account property held by third parties, whether it is cash, personal items, land, or intangible property such as an interest in a trust, where that property is found to be a tainted gift from the defendant.

What constitutes a tainted gift, as opposed to a transfer of property?

If a gift can be proved to have been criminal property, or

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