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Restraint and Confiscation – A practical guide to the recovery of criminals' assets in the UK and overseas
ICC FraudnetHilton Mauritius Hotel and Spa Resort
8th April 2010
David IngramGrant 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 LegislationProceeds 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 – Pickering
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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 ?