Where directors have committed criminal offences and where confiscation orders have been made against them, does recognition of a constructive trust over unauthorised profits made by directors by virtue of the same conduct and in breach of fiduciary duty result in the company profiting illegally from the proceeds of crime in particular where such recognition would frustrate the enforcement of the confiscation orders?
No, held the Supreme Court in a judgment handed down today in Crown Prosecution Service v Aquila Advisory Limited [2021] UKSC 49. The Supreme Court considered the interrelationship of three Supreme Court decisions – Jetivia SA (& another) v Bilta [2015] UKSC 23, Bilta Patel v Mirza [2016] UKSC 42 and FHR European Ventures LLP v Cedar Capital Partners LLC [2014] UKSC 45 (“FHR”) and the consistency of those decisions in this context with the regime in Parts 2, 5 and 7 of the Proceeds of Crime Act 2002 (POCA) confiscation, civil recovery and money laundering, respectively. A link to the judgment is here and the Supreme Court summary is here.
Stuart Ritchie QC acted for Aquila. For his full briefing on this case, please see here.
