The Proceeds of Crime Act 2002 does not provide a complete and exhaustive code for the resolution of disputed property rights in the context of restraint and confiscation orders in criminal proceedings.
The Court of Appeal has considered this issue, allowing an appeal in Ahmet v Tatum and another [2024] EWCA Civ 255.
The case concerned the ownership of Brindles Farmhouse in Brentwood. David Tatum was the registered proprietor of the property but Senel Ahmet claimed a beneficial interest in it.
The property was acquired in joint names in 2017 but transferred into Tatum’s sole name in 2019, allegedly to facilitate obtaining a loan.
Tatum was charged with drug and money laundering offences and in August 2021 the Crown Court made a restraint order under POCA which prohibited the disposal of Brindles Farmhouse. Tatum was sentenced to 15 years imprisonment in April 2023.
Ahmet’s High Court application for an inquiry and declaration as to the beneficial interests in the property was struck out in May 2023, the CPS successfully arguing that in POCA parliament had provided a complete and exhaustive code for the resolution of disputed property rights between the CPS and a third party. Ahmet appealed.
Part 2 of POCA allows for the confiscation of assets of persons convicted of criminal offences. Such persons are required to pay a “recoverable amount” – an amount equal to the benefit from the conduct concerned – which is limited by the “available amount”, the aggregate of all free property held by the defendant including “tainted gifts” or sales at an undervalue.
Section 10A allows the Crown Court to determine the extent of the defendant’s interest in property and for anyone else who may have an interest in it to make representations.
Such a determination is conclusive as to the defendant’s interest in the property. An enforcement officer can be appointed to realise it.
Where there are other proceedings relating to property in respect of which a restraint order or an order appointing an enforcement receiver has been made or applied for the court may stay the proceedings or allow them to continue on any terms it thinks fit under sections 58-59.
The Court of Appeal decided, as a matter of statutory construction, it is not apparent that parliament intended POCA to provide the only ways in which any property questions relevant to confiscation proceedings can be decided and that civil claims asserting an interest in “realisable property” are not generally to be regarded as abusive.
It was for the civil court to consider what is appropriate on the specific facts.
Louise Clark is a property law consultant and mediator
