Legal issues
Section 10A permits the court, in appropriate circumstances, to determine the defendant’s interest in property likely to be used to satisfy an order. A person whom the court considers may hold an interest must have a reasonable opportunity to make representations. Such a determination can have conclusive consequences at enforcement, subject to statutory exceptions. Waiting until a sale is proposed may therefore be too late to address the issue effectively.
This guide concerns England and Wales.
For the wider service, see Proceeds of Crime (POCA). Related decisions are covered in Benefit and available amount in confiscation and Account forfeiture after an account freezing order.
Evidence that matters
For a home, gather the title, purchase file, deposit trail, mortgage history and any declaration of trust. For business property, identify whether the asset belongs to a company, partnership or individual. For money, trace the contributor, purpose and account movements. Registered ownership is important evidence, but the beneficial ownership question may require more.
Reasonable lines of enquiry
Separate a claimed ownership share from an unsecured debt owed by the defendant. Ask when the interest arose, whether documents were created contemporaneously and whether the alleged transfer is challenged as a tainted gift. A spouse’s claim to half the equity should be explained and evidenced rather than assumed from the marriage alone.
What happens next
Identify the procedural route before submitting material: confiscation, restraint and enforcement raise different issues. Ask to see the order and any directions affecting third-party representations. The response may require a witness statement, documentary exhibits and attendance at a hearing. The court may accept, reject or determine a different extent of interest from that claimed.
Immediate steps
Obtain independent advice promptly where your position differs from the defendant’s. Preserve acquisition records and notify your adviser of every hearing date. Do not transfer property to “protect” it or ask the defendant’s solicitor to advance inconsistent ownership cases.
What should you send us?
Send the relevant POCA orders, property and loan documents, bank transfer evidence, any trust agreement and a short chronology explaining your contribution and the interest you claim.