B, Re

Under Part VI of the Criminal Justice Act 1988, property transferred by a defendant may remain available to satisfy a confiscation order. A transfer may constitute a gift even where the defendant did not intend to evade confiscation proceedings, if the statutory conditions are met. The court retains a judicial discretion when appointing an enforcement receiver and must exercise it consistently with the legislative policy, while protecting third-party interests. Where appropriate, the court may postpone the receiver’s appointment to allow an interested third party to sell the property and avoid receivership costs.

The Prosecutor applied for the appointment of an enforcement receiver to sell the defendant’s matrimonial home in Birmingham and satisfy an outstanding confiscation order. The defendant had transferred his half equity in the property to his wife shortly before pleading guilty to excise fraud. His wife intervened, contending that the transfer reflected the true beneficial ownership because she had financed the family and mortgage payments.

The central issues were whether the defendant retained an equity in the property, whether the transfer was a statutory gift available for realisation, and how the court should exercise its discretion concerning appointment of a receiver.

1. The application for appointment of an enforcement receiver was granted in principle. The appointment was postponed for six months, until 1 November, to enable Mrs B to sell the property herself and avoid the additional costs of receivership.
2. The court rejected the allegation that the transfer was made for the purpose of avoiding the consequences of a confiscation order. The transfer was instead part of an attempt to place the family finances in order.
3. That finding did not prevent the statutory provisions from applying. The defendant had held a 50% equity in the property from 1988 until the transfer in 2004. The evidence did not establish that he had contributed little or nothing to the mortgage and family expenses.
4. Under Part VI of the Criminal Justice Act 1988, realisable property included property transferred to another person. The transfer was treated as a gift of the defendant’s equity because the consideration was significantly less than the value of the interest transferred. The gift was therefore available to be realised towards the confiscation order.
5. The discretion to appoint a receiver had to be exercised judicially and in accordance with the legislative policy. Third parties with an interest in the property had to be given an opportunity to make representations, and the receiver’s powers had to be exercised with a view to recovering property belonging to them.

The property was to be sold if the confiscation order could not otherwise be paid.