Gifts and Boomerangs – when is a gift not a gift?

5SAH Asset Forfeiture and Confiscation Team members Andrew Bird and Gary Pons explore the law relating to tainted gifts in confiscation proceedings as part of 5SAH's Autumn Series.

In some cases a transfer may look like a gift but is not really a gift at all – simply a defendant trying to disguise his own asset while actually  retaining an interest for himself.  In cases where gifts are incomplete, the relationship with s.10A of POCA 2002 may also come into play.  It is becoming increasingly important for both prosecution and defence to be aware of the law in this area, and to frame its case accordingly.  A finding of tainted gift may significantly increase the amount that a defendant has to pay under a confiscation order.  In cases (in particular) of gifts to spouses, the issue is often connected with whether the spouse has an interest in the asset concerned, giving rise to rights to make representations under s.10A POCA.  The seminar will also examine the circumstances in which the inclusion of tainted gifts may give rise to objections on the basis of disproportionality.  Cases considered include:

Andrew is a specialist in white collar crime, civil and criminal asset forfeiture, civil and public law proceedings regarding the criminal process. Ranked as a star Individual in Chambers and Partners in the fields of POCA work and asset forfeiture (all circuits) and ranked as a band 1 leading individual in the Legal 500 in the field of POCA and asset forfeiture (London Bar). 

Gary is ranked in Chambers and Partners as a band 3 leader in the field of POCA and Asset Forfeiture work (all circuits) and is also ranked as a band 5 leader in the field of criminal law (London Bar). Chambers and Partners 2018 says Gary: "handles serious confiscation cases and is an expert on cash forfeiture. He is praised for his fluency in Spanish, which comes in useful when he is handling multi-jurisdictional cases involving Spanish-speaking countries."