Third Parties’ interests often take a back seat when confiscation proceedings are ongoing and so a defendant’s partner, wife or husband’s interests may not always be advanced at an early stage and that may have serious implications in terms of any Orders the Court makes at the conclusion of proceedings.
Third parties often have beneficial interest in property and those beneficial interests ought to apply when calculating the recoverable amount in confiscation proceedings.
In the recent reported case of R v Harriet (Paula) (2012 EWCA Crim 2294), the Court was concerned with making an Order against the defendant and took into consideration her realizable assets which included her house. The Court made an Order on the basis she had full control over 25% of the equity in the matrimonial home, notwithstanding that she resided there with her husband and children and that the husband had contributed to payment of the mortgage on the property, although was not named on the mortgage deeds.
In this case it would seem documentation was not before the Court prior to making the Order and, on appeal, the Court quashed the original decision by the Crown Court Judge on the basis the appellant’s husband, here the third party, was legally entitled to his share of the property and that should have been accounted for when calculating the appellant’s equitable interest in the matrimonial home.
The issue that arises here is that third parties’ interests should be advanced at an early stage of proceedings and, had that happened in the present case, it is arguable whether the Court would have made the Order that it did prior to the appeal.
Third party interests need not only relate to property, but other assets jointly owned between the defendant and the third party, and therefore in a case where third party interests are relevant it is often necessary, and indeed desirable, that that third party seeks independent legal advice once confiscation proceedings are commenced, if not before.
Lewis Nedas Law have extensive experience in advising third parties in matters of this nature. Often, specialists in expert advice can alleviate the need for contested confiscation hearings at an early stage of proceedings where third party assets are advanced in a case.
