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"Tainted Gifts" - Is Recoverability an Issue?

06-Jun-2017

The involvement of third parties in confiscation proceedings can be problematic, especially in the context of “tainted gifts”.

The case of R v Smith (2013) EWCA Crim 502 highlights the importance, or not, of the recoverability of “tainted gifts” when assessing their value.

In this particular case, the appellant argued that sums of money given to family members were irrecoverable and, therefore, should be regarded as having no value for the purposes of determining the recoverable amount.

However, the Court of Appeal ruled that it did not matter whether, or not, there was a likelihood of the “tainted gifts” being returned by the recipient, on the basis that:

  • There is no mention of recoverability when valuing “tainted gifts” under s81 of POCA.
  • The purpose of the “tainted gifts” provision is to prevent Defendants from dissipating their assets by giving them away.

Intuitively, therefore, it would defeat the point of POCA to say that “tainted gifts” have no value and, as such, should not be included as part of confiscation proceedings, simply because the Defendant cannot get them back.

It is apparent therefore that the recoverability of “tainted gifts” is not an issue when calculating the recoverable amount.

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