Confiscation and the issues within those proceedings are highly complicated and the results are often draconian. In a recent Court of Appeal decision it has acknowledged the position recognised in the Family Courts that the maintenance and care of children has a value and can be regarded as consideration and consequently deducted the payments from the realisable amount he was ordered to pay under a confiscation order .
The Court of Appeal in the case of a R v Usoro 2015 EWCA Crim 1958 acknowledged the position of the defendant in having a moral or legal duty to make maintenance payments and that the mother’s care of the children could amount to consideration for the purposes of the Proceeds of Crime Act 2002. The prosecution had accepted that the payments were made for the purpose of child maintenance but distinguished other cases where payments were made to family members and were found to be tainted gifts. The defendant had pleaded guilty in an advance fee fraud conspiracy.The development is particularly significant where there is an obligation to make payments in the absence of a court order .The policy of the Proceeds of Crime Act 2002 in relation to gifts is to prevent defendants from dissipating the proceeds of crime by distributing them and then resisting confiscation proceedings on the basis that gifts had been made.
Martin Lee can be contacted on 0207 842 8600 or via email firstname.lastname@example.org