What is a “tainted gift” in the eyes of the court of appeal?
In a recent court of appeal case, the jury examined the specifics of exactly what constitutes a tainted gift. In this blog post, we’re going to look at what a “tainted gift” is, in relation to confiscation proceedings.
In the case, the appellant (the individual seeking an appeal) had decided to appeal against a confiscation order placed on some items of their property. In a previous ruling, the judge had concluded that a transfer of property from the appellant to his wife, which in this case had been said to be in “consideration of family services” constituted a tainted gift.
In response, the appellant had argued that his wife’s contributions over the course of the marriage were not limited to financial ones and that the court should take into account her contributions to family life.
The court agreed that “family services” may vary.
What are “family services”?
Family services, in cases such as these, refers to the contribution the spouse has made to the family unit. It can be extremely difficult to pinpoint an exact value on these contributions, as they can take into account valuable but not-paid-for services such as:
- Raising children
- Taking care of assets
- Supporting the family home
- Household work such as home administration, cleaning and cooking.
What happens in a confiscation case?
In relation to a confiscation case, the court will have already considered that the defendant has been living a “criminal lifestyle”. As such, the court then has to consider a number of factors objectively in order to decide whether the property they have given or transferred to another person has been obtained illegally. This can include looking at the extent of the contribution made, and the value transferred.
In every confiscation case, orders are decided on each case’s individual fact and merits. This means that for example, even if in a similar case property was not confiscated, this does not mean the same outcome will apply in every case.
When looking at the recent court of appeal case mentioned above, David Lawson, director of DRN and a member of its Proceeds of crime team said, “The court will closely consider the value being attached to the transfer and will rigorously consider if it is capable of being assessed.”
This means that in all “tainted gifts” cases, the court will analyse every possible detail to ensure that any confiscations made are truly representative as the proceeds of crime. This can be a complicated process, especially when tainted gifts are given to family members as payments for services – such as in the case mentioned contributions to family life generally.
At DRN, we often advise individuals convicted of offences who face proceeds of crime hearings. If you are facing a case involving “tainted gifts”, it’s advisable to contact a solicitor immediately for confidential, non-judgmental advice. Our experienced lawyers will guide you through the process of confiscation and its effect.