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Restraint and confiscation in the UK

Restraint and Confiscation – A practical guide to the recovery of criminals' assets in the UK and overseas ICC Fraudnet Hilton Mauritius Hotel and Spa Resort 8th April 2010 David Ingram Grant Thornton UK LLP, London. Restraint and confiscation in the UK. Brief history Current legislation

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Restraint and confiscation in the UK

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  1. Restraint and Confiscation – A practical guide to the recovery of criminals' assets in the UK and overseasICC FraudnetHilton Mauritius Hotel and Spa Resort8th April 2010David IngramGrant Thornton UK LLP, London

  2. Restraint and confiscation in the UK • Brief history • Current legislation • Examples • Significance to FraudNet members • Questions

  3. 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

  4. 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...

  5. 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

  6. Confiscation Order • Post conviction • Benefit - actual • Confiscation amount • defendant's assets • not restricted to obtained through criminality • hidden assets • Default sentence • Time to pay

  7. What if the defendant is found not guilty? • Civil recovery • SOCA, RCPO (now CPS), CPS • Failed prosecution • Defendant out of jurisdiction • Criminal lifestyle

  8. Civil Recovery - POCA style • Introduced by POCA • Property freezing order - ex parte • Application for civil recovery • Civil burden of proof

  9. Restraint, confiscation and third parties • Rights of prior encumbrancers preserved • SFO V Lexi • s426 POCA • Compensation Orders - Messrs. Darwin

  10. John and Anne Darwin

  11. Examples • Restraint stage – Selby • Confiscation stage – Leaf • Civil Recovery – Pickering

  12. 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

  13. Questions ?

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