Chantel Gaber obtains a 'certificate of inadequacy' that reduced to nil the amount owed under a 9-year-old confiscation order

Ms Gaber and her instructing solicitors did not represent the defendant during his original confiscation proceedings. The confiscation order made in 2015 included funds held in American and Costa Rican banks (valued at £7k) and the defendant’s share of a company that owned a Costa Rica property (valued at £66k).

When the order was made, the defendant signed banking mandates so the prosecution could realise the credit balances. The following year, whilst serving his 13-year prison sentence, he consented to the prosecution’s appointment of agents to sell the property.

Despite this, enforcement proceedings were initiated in the magistrates’ court due to non-payment of the realisable amount and the defendant has faced activation of the default sentence on repeated court trips.

Having failed to progress the land sale due to the upfront costs, the prosecution turned the onus on to the defendant in 2023 as he had been released.

Defence application

An application for a ‘certificate of inadequacy’ under section 23 of the Proceeds of Crime Act 2002 to the Crown Court must be predicated on ‘post-confiscation order events’:

Whilst the defendant was in prison, the inactivity on the bank accounts resulted in the accounts being closed and monies forfeited to the respective central banks.
The defence instructed a conveyancing expert in Costa Rica to investigate the property and company structure. It transpired that, since the confiscation order had been made, the defendant’s interest in the property had been extinguished. Unbeknown to him, the property was sold by the company’s other director, most likely in breach of company law, as it was in a dilapidated state for no consideration.

Conclusion

In cases such as this, a defendant cannot simply return to court and claim impecuniosity to settle the extant order. The court treats with upmost scepticism any applications of this nature. Comprehensive material must be provided. Here the prosecution was convinced, and the court exercised its discretionary power to reduce to nil the amount (including interest) owing on the order.

The defendant and his partner who attended court were naturally delighted that matters now, finally, have concluded.

Chantel Gaber was instructed by David Bloom of Sonn Macmillan Walker