Valuing your Assets is Your Responsibility!
It has been reaffirmed in the case of R v Waya [2012] UKSC 51 that the Court when making a confiscation order against a defendant has to be satisfied that a three-stage process has been completed.
The first stage of the process is the identification of the benefit obtained by the defendant. The second stage is the valuation of that benefit and the third stage is the valuation as at the confiscation day of all the defendant’s realisable assets.
Lord Bingham in the case of R v May [2008] UKHL 28 quite admirably explains the common misconception many lay people have when trying to understand the confiscation process. He stated that “Although “confiscation” is the name ordinarily given to this process, it is not confiscation in the sense in which schoolchildren and others understand it. A criminal caught in possession of criminally-acquired assets will, it is true, suffer their seizure by the state. Where, however, a criminal has benefited financially from crime but no longer possesses the specific fruits of his crime, he will be deprived of assets of equivalent value, if he has them. The object is to deprive him, directly or indirectly, of what he has gained.”
It has been long been established by the cases of R v Barwick [2000] EWCA Crim 35551 and R v Whittington [2009] EWCA Crim 1641 that the burden is placed upon the Prosecution to prove benefit, and establish that the defendant has obtained the property in issue, which will either be known property he still possesses or which he has possessed. The prosecution save for certain exceptions must prove the existence of that property to the civil standard of proof.
Nevertheless, once the benefit has been established and duly determined, the burden then rests upon a defendant to provide accurate valuations of all his property so his Available Amount can be determined.
Should a defendant fail to adhere to this burden, there could be severe consequences, including the Court finding that the Defendant has failed to establish that the value of his assets are inadequate to satisfy the whole of the Confiscation Order.
Do not let this scenario happen to you, should you have any queries or concerns in relation to the preparation of your confiscation proceedings, please do not hesitate to contact our specialist POCA Solicitors who have extensive experience in dealing with such matters.