Posted: 11 / 05 / 2020
What can be done about the impact of COVID-19 on asset realisations in confiscation?
In the second topic of our Lockdown webinar series, Director at Bartfields Forensic Accountants, David Winch, hosted a 30mins webinar on Wednesday 6th May 2020 to explain all.
Following the webinar we were asked a few question on the subject, settling a confiscation order in Lockdown. Our answers to the questions are below, along with the recording from the webinar.
What lengths do the Crown go to ensure that an asset has been sold at fair market value in an arm’s length transaction to avoid assets being sold at undervalue to family and friends, for example?
It depends on how effective the CPS are & may vary on a case by case basis. There is likely to be more scrutiny where the asset being sold is subject to a restraint order. Worst case, a ‘fake’ sale to a mate at undervalue might be regarded as an offence – possibly an offence of perverting the course of justice.
How do you get legal aid for these variations? Is it part of the original legal aid order?
I am not an expert on legal aid but my understanding is that all this is treated as an element in the sentencing following conviction.
If enforcement proceedings lead to activation of the default period, does a successful subsequent application under s23 automatically stay or otherwise effect the activation of default period?
I would doubt that this would happen “automatically”. I think this would have to be raised with the CPS or Magistrates prior to committal or with the prison authorities post-committal. There are circumstances in which a successful s23 application can lead to a variation of the default sentence set when the confiscation order was made. This raises additional issues as the original default sentence would be under s35 PoCA 2002 (as amended) but the variation would be under s39 (which refers to the original table of default sentences in s139 of the Sentencing Act).
Also, considering the case of Benedick, who had paid £20,000 but – let’s assume – pays nothing further. He has unpaid 80% of the original amount required to be paid of £100,000. But after a successful s23 application to reduce the £100,000 to £50,000, he has paid 40% of that lower amount. So should he now be at risk of 80% or only 60% of the default sentence?
Also remember that any interest added on to the amount outstanding has to be disregarded for the purposes of calculating the proportion of the default sentence which the defendant has to serve.