A Coach and Horses has been driven through the way the Police and Crown Prosecution Service can assess criminal benefit for Confiscation order proceedings in respect of Mortgage fraud convictions.
The recent case of R v Waya decided last week in the House of Lords has finally ended the state sponsored theft that was occuring in cases where an individual was convicted of mortgage fraud. Previously the Police had got away with arguing that the benefit to an individual convicted of mortgage fraud was the full amount of the mortgage advanced, this in spite of the fact that the mortgage companies monies was almost always secured by a charge on the property that secured the mortgage and guaranteed that the lendor would not be left out of pocket and meaning that effectively a defendant would not only have to pay the mortgage company back but also pay a similar amount to the courts through their confication order.
That draconian legal principle has now been quite rightly smashed to bits by the House of Lords who have confirmed that the only true benefit is any increase in the value of a property puchased with the mortgage (unlikely in these recessionary times) or possibly any difference in interest rate terms should the fraudulent aspect of a mortgage application have secured more favourable terms from the bank.
Police Financial Investigators will be crying into their cup-a-soups at the surprising decision which overturned previous Court of Appeal pronouncements that the State could effectively take [steal] what they wanted previously.
What this means in practice is a complete u-turn in the way confiscation proceedings are dealt with in Mortgage Fraud cases. Ashcotts Criminal Solicitors are expert mortgage fraud solicitors and confiscation solicitors and have already had one case adjourned today at Bradford Crown Court where the Crown were seeking an order of over a quarter of a million pounds but Ashcotts are arguing the Confiscation Order should be nil.
An interesting aspect of R v Waya is that the decision is really 10 years late. Countless Cnfiscation Orders have now been made in error over the last 10 years since the inception pf the Proceeds of Crime Act 2002 (POCA) and may well need to be subject to some form of review in the higher courts.
If you have had a confiscation order imposed for mortgage fraud contact Ashcott Criminal Solicitors – expert confiscation solicitors and mortgage fraud solicitors
