The court considered the ambit of the discretionary grant of a restraint order, where the proceeds of crime had been transferred to a company.
Held: Ouseley J said: ‘In my judgment the real question which a judge faced with an application for a restraint or receivership order is whether the order of the extent sought and now obtained is appropriate or necessary in view of the two legislative objectives out in section 31(2) and (4) of the 1994 Act. The question whether the effect of such an order is to pierce the corporate veil or whether some particular test related to that concept requires to be satisfied is not, in my judgment, the ultimate object of the inquiry which the court has to carry out. The object of the Act is to enable proceeds of crime to be ascertained, protected and realised. The first question therefore is whether there are corporate assets which should be treated as the defendant’s assets and the second question is whether, if that is the case, a restraint and receivership order of the extent sought is necessary. The position, in my judgment, is the same where there is an intermingling of the assets of a criminal, who is seeking to evade the effect of the confiscation order, with the assets of innocent business partners in a company. If it is established that some or all of the assets of the company are to be treated as assets of the defendant, the question of how their intermingling with the assets of someone who is innocent of wrongdoing is to be dealt with, is a matter for resolution by deciding whether an order should be made and if so on what terms, rather than a matter which has to be resolved by simply asking whether the corporate veil should be pierced.’
Ouseley J
[2006] EWHC Admin 254
Drug Trafficking Act 1994
England and Wales
Cited by:
Cited – Larkfield Ltd and Others v Revenue and Customs Prosecution Office and Others CA 12-May-2010
The defendant in criminal proceedings (M) had been found to be beneficial owner of property. The company, its registered proprietor appealed against an order declaring the property to be a realisable asset of M. The respondent had said the . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 12 November 2021; Ref: scu.415922