In very simple terms, under the Proceeds of Crime Act 2002 (‘POCA’), confiscation proceedings occur once a defendant has been convicted of a specified criminal offence.  During these proceedings, a list of realisable or available assets will be produced which either the prosecution or the defendant state is available to satisfy a confiscation order in part or in full. The value of those available assets will be calculated, and this will represent the amount a defendant is required to pay towards the order.

How can third parties assert their interest in POCA Proceedings?

A scenario could arise where an asset listed as available for confiscation is in fact owned by a third party. Introduced by the Serious Crime Act 2015, Section 10A of POCA provides a mechanism in which third parties are given a ‘reasonable opportunity’ to make representations and assert their interest in assets which form part of the available amount in confiscation proceedings.

The burden is on the third party to prove ‘on a balance of probabilities’ their interest in the asset in question. This has the effect of either reducing the value of the asset available for confiscation by demonstrating that it is not wholly owned by the defendant or removing the asset from the proceedings in its entirety.

It is essential to seek expert legal advice as soon as you suspect an asset you have an interest in may be deemed available for confiscation. Making representations in such cases often involve complex issues of legal, equitable and beneficial ownership, trust and property law, and therefore seeking legal advice at the earliest opportunity is key to improving the chances of a successful application.

How could a third party interest arise?

There is no ‘one size fits all’ approach to third party interest applications, and as such, each application is considered on a case-by-case basis. Examples of possible third-party interests could include:

Joint Owners of Property

An individual can make an application to have their share of a property excluded from the confiscation order.

Gifted Property

Assets a third party has given to a defendant, such as jewellery or designer items, may be returned to the third party in certain circumstances.

Business Assets

Business assets can be retained by the company if it is demonstrated that they are not personal property of the defendant.

It should be noted that there does not need to be a direct financial payment to obtain a third-party interest in an asset and our expert POCA solicitors will be able to advise an interested third party on all aspects of their application.

How does a third-party intervene in POCA proceedings?

A third party can assert their interest in an asset at any point in the confiscation proceedings.  This could also take place afterwards during the enforcement proceedings. Through their own investigations, the Prosecution may identify that there is an individual with a third-party interest in relation to a defendant’s asset and will subsequently write to them to invite them to join the proceedings. The purpose of a third-party joining confiscation proceedings is to enable them to confirm their interest to the court with evidence in support.

A third-party interest can still arise even if the third-party has not been written to. Given that the defendant is usually known to the individual with an interest, the individual may find out about the confiscation proceedings independently. In both cases, it is important that the individual with an interest seeks legal representation at the earliest opportunity. The court will need to be informed of the third-party interest, and instructing a specialist solicitor to assist, who is separate to those acting for the defendant is an important step to a third-party in the proceedings.

How can a third part interest be evidenced?

A third-party interest application will need to be supported by evidence. The type of evidence gathered will depend on the nature of the asset in question and could be supported by further witness statements. Examples of evidence include the following:

Property

• Land Registry title
• Mortgage documents
• Declaration of Trust
• Bank statements
• Correspondence (letters, emails, texts)

Vehicles / Personal Property

• Registration documents (V5 logbook)
• Proof of purchase (invoices/ receipts)
• Loan/ vehicle finance documents
• Insurance documents
• Witness statements

Bank Accounts

• Bank statements
• Investment documents
• Records of loans / gifts

Business Assets

• Bank statements
• Company register/ shareholder agreements
• Proof of capital contributions

What happens next?

The third-party interest will be outlined by way of a Section 18A Statement.  This is normally ordered by the court and will be due to be served by a certain date. The Prosecution will then consider whether:

1. The third party’s interest in the asset is accepted. The value of the third party’s interest in this asset will be reduced from the Defendant’s available amount. 
2. The third party’s interest in the asset is partly accepted. The third party has the option of contesting this at a hearing at court or accepting their partly recognised interest. In this instance, a specialist solicitor will be able to advice on next steps. 
3. The third party’s interest is not accepted. If the third party wishes to contest this, they will likely need to give evidence at a contested hearing.  A judge will then make the final decision.

Conclusion

Demonstrating a third-party interest in an asset relevant to confiscation proceedings is a complex process and will require an expert Solicitor to ensure that your case and evidence is presented in the best possible way.  Each third-party interest application is assessed on an individual basis, and it can be difficult to calculate what a third-party’s interest should be. At JMW, we understand that each case is different, and our approach will be tailored to the specific needs of your application.