Key Facts
- •Mr. Asplin was convicted of conspiracy to defraud and false accounting, sentenced to 7 years imprisonment, and a confiscation order of £4,828,728 was imposed.
- •A civil restraint order (Restraint Order) was made, prohibiting Mr. Asplin and his wife from dealing with assets.
- •The Restraint Order is being varied to allow the sale of two properties: the Family Home (Elberton Court) and the Rented House (Primrose Drive).
- •Mrs. Asplin holds the majority of legal title to both properties.
- •Barclays Bank holds a charge on the Family Home and Mr. Hosier holds a charge on the Rented House.
- •The variation allows Mrs. Asplin to buy out Mr. Asplin's interest in the Family Home and sell the Rented House, with proceeds going towards the Confiscation Order.
Legal Principles
The court has discretion, not a duty, to vary a restraint order. The burden of persuasion lies on the applicant to show it is 'just' to vary the order.
Serious Fraud Office v X [2005] EWCA Civ 1564
Variation should maximise realisation of the defendant's realisable property for the confiscation order while allowing others to retain or recover their interests.
Sections 82(2) and (4) of the Criminal Justice Act 1988
The court considers the overall statutory purpose of recouping the benefit from criminal conduct.
R v Wood [2022] EWCA Crim 1243
Outcomes
The Restraint Order was varied to permit the sale of the Rented House and the buyout of Mr. Asplin's interest in the Family Home, but with the precondition that the Rented House sale must complete before the Family Home buyout.
This ensures full incentivisation for the prompt sale of the Rented House, maximising recovery for the Confiscation Order, and mitigating the risk of delays or inaction.
No discount for notional sale costs will be applied in the Family Home buy-out, and repayment of Mr. Hosier's loan is not a precondition for the Rented House sale.
This reflects the agreement reached between the parties.
The application for costs by Mr. Hosier was rejected.
The request was deemed too late in the proceedings.