The Relevant Day in Proceeds of Crime Cases13-Apr-2017
If the Court decides that the Defendant has a criminal lifestyle it must make assumptions for the purposes of deciding whether they have (a) benefited from their criminal conduct, and (b) deciding their benefit from the conduct.
The first and third assumptions are that any property transferred to, or expenditure incurred by the Defendant at any time after the relevant day, was
obtained / met by them as a result of their general criminal conduct (transfers and expenditure). The Relevant Date is clearly significant for rebutting
The second assumption is that any property held by the Defendant at any time after the date of conviction was obtained by him as a result of his general criminal conduct (property held).
Seemingly, therefore, it is irrelevant when the property was actually acquired. Or is it?
In accordance with the second assumption, the Crown’s financial investigator will usually attempt to value the benefit obtained by the Defendant in one of the following ways:
- The full current market value
- The purchase price
- The value of mortgages obtained / further advances obtained
- Rental income
At worst, our forensic accountants have seen cases where several of these methods have been used in conjunction with one another, leading to double or even triple counting (and at the very least, a selection of the highest values given by the alternatives).
In our experience, however, where a property has been purchased prior to the relevant day, the Court is often sympathetic to the overwhelming burden imposed by the Crown on the Defendant, when attempting to rebut the second assumption, such that funds accumulated / transactions taking place prior to the relevant day (which were used to purchase the property in question) are not normally considered to form part of the Defendant’s general criminal conduct.
Our approach to dealing with the second assumption is necessarily unique to each case however, generally speaking, even where property is caught by the second assumption (i.e. the assumptions cannot be wholly rebutted) and it was purchased prior to the relevant date, then we would seek to calculate the increase in the value of the property from the start of the relevant period to date and then the proportion of that which was obtained as a result of the use of legitimate funds during that period (applying Waya).
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