What is a Tainted Gift in Confiscation Proceedings?
Tainted gifts are an important part of the POCA (Proceeds of Crime Act), or confiscation, proceedings.
When looking at the total available amount to be confiscated the court will add any tainted gifts. These can be added up to the value of property actually owned by the defendant.
This means that the available amount figure that the prosecution reach may be higher than what is actually immediately available.
What is a gift in POCA proceedings?
A gift in confiscation terms relates to an asset transferred by the defendant to another person where the defendant either receives nothing or receives significantly less than the value of the asset.
Gifts can include money as well as assets. If you give money to another person without receiving anything in return then this is a gift. If you sell a car that is worth £10,000 for £5,000 that is also a gift.
For it to be a gift you have to transfer the actual ownership of the asset. So putting a car in your wife’s name but then carrying on using the car would not necessarily be a gift but it would be classed as an asset owned by you so would still be available in POCA proceedings.
What is a tainted gift?
Having found what amounts to being a gift, the court goes on to decide whether it is a tainted gift. This will depend on the date of the gift.
The relevant date will depend on whether it is said that you have a criminal lifestyle.
If you are not said to have a criminal lifestyle then the gift will only be a tainted gift if it is made by you on or after the date the offence was committed.
If the offence was committed on more than one day or there is more than one offence then the earliest date will count.
So, for example, if you are charged with theft from 21st November 2017 to 20th November 2018 then any gifts made after 21st November 2017 will be tainted but any made before will not be.
If it has been ruled that you do have a criminal lifestyle then a gift can be a ‘tainted’ if made after the relevant day.
The Relevant Date
The relevant date is different for a criminal lifestyle case. Here the ‘relevant day’ is 6 years before the proceedings were commenced. If there are two or more offences, then the earliest one is the ‘relevant day’.
So, for example, if you are charged on 20th November 2018 with an offence which qualifies as a criminal lifestyle then the relevant day is 21st November 2012. So any gifts made on or after this date are tainted gifts, any made before are not tainted gifts.
Can a gift to my spouse become a tainted gift?
In some circumstances it can be and expert legal advice is needed in these cases. Call us now on 01623 397200 to discuss this point in detail.
What is the effect of a tainted gift?
The value of the tainted gift will be added to the “available amount” figure and will be included in the confiscation amount to be paid by you.
The court can also appoint a receiver to recover the property which can include forcing the owner of the gift to sell the property.
What is the value of a tainted gift?
The value is the higher of two values – the value when the gift was made or the value when the court assesses it.
So if you made a gift five years ago and the value has gone down then the relevant value will be the value at the time of making the gift. If the value has gone up then the relevant value is the value now. If the gift is now worthless then the value will be the value at the time of the gift.
If you have POCA or confiscation proceedings then it is important to obtain expert advice from POCA solicitors. We are a nationwide firm and can represent you in any court in England and Wales and are able to see clients face to face in Nottingham, Birmingham or London.
Call our dedicated team now on 01623 397200 for free initial advice.
