Court of Appeal says “won’t pay” doesn’t equal “can’t pay"

The Court of Appeal affirmed that the value of a tainted gift cannot be deducted from a confiscation order simply because the donee will refuse to repay the gift.

The defendant had gifted £38,200 to the mother of his children, who used it to purchase her Council house. The Crown Court declined to include the gift in the confiscation order, finding that it would only lead to imposition of the default sentence because she would refuse to sell her house and make her family homeless; to include the gift would therefore be disproportionate.

The Court of Appeal overturned that decision on the basis that proportionality has no bearing on cases where donees simply "will not" repay, as opposed to cases where they “cannot" repay. The Court of Appeal also rejected arguments that defendants can invoke Article 8 or section 10A of POCA in such tainted gift cases. You can view the judgment in full here.

David is a barrister with a strong practice in fraud and serious and organised crime cases. David is ranked in Chambers and Partners as a Band 4 leader in the field of financial crime.