Posted: 11 / 07 / 2021

The four key areas

There are four key areas in confiscation proceedings in which a CPIH indexation uplift may need to be applied.

1. Where the defendant has obtained property

Where a defendant has obtained property (which includes an asset of any description) as a result of, or in connection with, his criminal conduct – or where the property is caught by one of the statutory assumptions of s10 PoCA 2002 – then the prosecutor will include the value of that property as an element in the defendant’s benefit for the purposes of his confiscation proceedings.

The provisions of s80 operate when calculating the value of that property.  Under s80 alternative approaches to the value of that property may apply, and the court will use whichever alternative produces the greater value.

One of those alternatives is to ascertain the value of the property at the time the defendant obtained it and adjust that for subsequent changes in the value of money.  That adjustment will be based on the CPIH index published by the Office for National Statistics.

2. Where the defendant has made a gift of property

Where a defendant has made a gift of property, or has disposed of property for significantly less than its value at the time of his disposition, and the transfer is caught by the tainted gift provisions of s77 – then the prosecutor will include the value of that property as an element in the available amount for the purposes of his confiscation proceedings.

The provisions of s81 operate when calculating the value of that property.  Under s81 alternative approaches to the value of that property may apply, and the court will use whichever alternative produces the greater value.

One of those alternatives is to ascertain the value of the property given at the time of the gift and adjust that for subsequent changes in the value of money.  That adjustment again will be based on the CPIH index published by the Office for National Statistics.

3. Where the defendant may have a criminal lifestyle

The tests which determine whether a defendant has a criminal lifestyle are set out in s75, and dealt with in another article on here.  One of the tests is whether the defendant has obtained relevant benefit of at least £5,000.

The provisions of s80 operate when calculating the value of that relevant benefit.  Under s80 alternative approaches to the value of property may apply, and the court will use whichever alternative produces the greater value.

One of those alternatives is to ascertain the value of the property obtained, which constitutes the relevant benefit, at the time the defendant obtained it and adjust that for subsequent changes in the value of money.  That adjustment will be based on the CPIH index published by the Office for National Statistics.

4. Where the prosecution ask the court to vary a confiscation order

The prosecution may apply to the court for an existing confiscation order to be varied in certain circumstances.  That request may be under s21 for a variation of the benefit found by the court, or may be under s22 for a variation of the defendant’s available amount previously found by the court.

The provisions of s21(11) and s22(7) operate when the court is considering such an application.  These require the court to have regard to changes in the value of money since the confiscation order was made (or last varied).

That consideration will be based on adjustments calculated using the CPIH index published by the Office for National Statistics.

Using a forensic accountant

We can assist in all of these areas (and many others) in relation to confiscation proceedings.

Contacting us

Our contact details are here.

David

(Note: This article applies to confiscation proceedings under the provisions of Part 2 of the Proceeds of Crime Act 2002 in England and Wales.  There are a number of additional issues which could be relevant to a defendant’s confiscation proceedings in particular cases which it is not possible to deal with in a relatively short article such as this.  Appropriate professional advice should be sought in each individual case.)