A 'certificate of inadequacy' obtained reducing the amount owed under a 9-year Confiscation Order to nil

Sonn Macmillan Walker did not represent our client during his original confiscation proceedings. The confiscation order made in 2015 included as available the credit balances held in American and Costa Rican banks (valued at £7k) as well as our client’s share of a company that owned a Costa Rican property (valued at £66k).

When the 2015 order was made, the defendant signed banking mandates so the prosecution could realise the funds held overseas. The following year, whilst serving his 13-year prison sentence, he consented to the prosecuting appointing agents to sell the property.

Despite this, enforcement proceedings were initiated in the magistrates’ court as he had not paid the determined amount, and the defendant has faced activation of the default sentence on repeated court trips.

Having failed to progress the land sale, in 2023 the prosecution put the burden back on our client to sell his share of this asset.

Defence application

An application for a ‘certificate of inadequacy’ under section 23 of the Proceeds of Crime Act 2002 to the Crown Court must be predicated on ‘post-confiscation order events’. In this case:

1. Whilst he was in prison, inactivity on the bank accounts resulted in the accounts being closed and monies forfeited to the respective central banks; and
2. We instructed a Costa Rican conveyancing expert to investigate the property title and company due to our suspicions about both. It transpired that, since the confiscation order had been made, our client’s interest in the property had in fact been extinguished. Unbeknown to him, the property was sold by the company’s other director, most likely in breach of company law, for no consideration in a dilapidated state.

Conclusion

In cases such as this, a defendant cannot simply return to court and claim impecuniosity. The court treats with upmost scepticism any applications and will treat the original confiscation unless compelling and comprehensive material can be produced to the contrary. In this case, the prosecution accepted the explanations advanced and Crown Court exercised its discretionary power and reduced the amount owing and the accrued interest (£54,000) to nil. 

Our client and partner were naturally delighted that this case is finally concluded.

David Bloom was the solicitor acting on this case. Chantel Gaber of 25 Bedford Row Chambers was instructed.