Assessing Beneficial Ownership Under POCA. Is the Crown Court the Appropriate Forum? by Stephen Wood QC
Tue 13th Jul 2021
Practitioners will be, by now, familiar with the provisions of section 10A POCA, which permits a Court to make a conclusive determination of the extent of a Defendant’s interest, where a third party may hold an interest in the property under consideration.
This procedure is becoming increasingly common. But is the Crown Court the best place for complicated issues, for example relating to trusts, to be determined?
In Reg v Moore (Parker as an interested party)  EWCA Crim 956 (judgment 25 June), the Court of Appeal suggested possibly not.
As a general proposition, the Court of Appeal questioned the overall fairness of these issues being decided by the Crown Court.
Andrews LJ, giving the judgment of the court said that the requirement that issues concerning the beneficial entitlement to property in the context of confiscation proceedings under POCA should always be determined in the Crown Court, instead of there being at least an option to transfer the more complex cases into the business and property courts is capable of giving rise to concerns about the fairness of the proceedings.
Her Ladyship went on to emphasise that this was not intended as a criticism of Crown Court judges, but rather a reflection of the considerable disadvantages that judges of the criminal court will face when confronted with issues of this nature, without having (or being expected to have) expertise in the law of trusts, and without necessarily having the assistance of specialist counsel.
The Court suggested that ‘appropriate cases’ might be transferred to the Business and Property Court and that consequently there will be a greater chance of the judge having relevant experience, and of the judge having the benefit of the assistance of experienced special counsel.
An alternative would be for a specialist judge to sit in the Crown Court to hear such cases, although the writer suggests that might be difficult to achieve in practical terms when the matter is to be determined by the trial judge at the confiscation stage.
The Court pointed out that the Crown Court can decline to make a determination under section 10A of the 2002 Act at that stage (see section 10A(1)) which would leave it to be dealt with at the enforcement stage, and an Enforcement Receiver can be appointed to litigate the issue (para 9).
The author can see how this might be an attractive scenario to many practitioners and indeed judges!
Broadway House Chambers and Keith Borer Consultants will be doing an Annual Defence Conference this year concentrating on aspects of the Proceeds of Crime Act 2002. Taking place in Spring 2022.
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Stephen Wood QC
Joint Head of Chambers
13th July 2021
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