In order to achieve the primary purpose behind sections 77 and 78 of the Proceeds of Crime Act 2002, which is to require criminals to disgorge the proceeds of their criminality, the tainted gift provisions deter attempts to render confiscation orders ineffectual by gifting away assets (para 25).

Deciding the fair and just division of assets in the Family Court in the context of matrimonial proceedings is irrelevant to the function of the Crown Court in making its assessment in confiscation proceedings under sections 77 and 78 of the 2002 Act. Where the defendant and his wife are legal and beneficial joint owners of property, they are together entitled to the net proceeds of any sale. It is irrelevant that the wife makes no financial contribution to the original acquisition. The joint and beneficial interest obtained by the wife constitutes a tainted gift. For consideration asserted to arise solely in the form of bringing up children or looking after the family home to constitute valuable consideration for the purposes of section 78(1) of the 2002 Act, the valuation has to be made objectively and in monetary terms, on an evidence basis. What family services involve can vary between cases and it would be wrong to commit to a wholly inflexible purported statement of principle to be applied to these (paras 47, 48, 55–57).

The following steps provide a convenient general approach the Crown Court can adopt when making a tainted gifts appraisal under section 78(1) of the 2002 Act, once it has assessed whether the defendant had a criminal lifestyle and determined which relevant day and which assumptions under section 10 to be applied or disapplied. (1)(i) Place a value upon the property transferred, at the time of transfer; (ii) assess whether consideration has been provided by the recipient of the property and (if it has) assess the value of the consideration provided; (iii) assess whether the value (if any) of that consideration (if any) is significantly less than the value of the property transferred, at the time of transfer; (iv) if there is found to be a significant difference, apply the calculation prescribed in section 78(2), thereafter also applying the provisions of section 81, as appropriate. (2) Each of steps (i), (ii) and (iii) above must always be undertaken objectively, on an evidence-based approach. There is no room, in this context, for approaches such as "plucking a figure out of the air". (3) Where the consideration which is asserted to have been provided by the recipient of the property is not in the form of a direct financial contribution or contributions, then it is necessary to examine the evidence rigorously and closely to see if the asserted consideration (whether by way of services or otherwise) is capable of being assessed as consideration of value and (if it is) to what extent. (4) Any consideration which is asserted to have been provided must be attributable to the transfer of property in question. (5) Any consideration which is asserted to have been provided must, for the purposes of section 78(1), be capable of being ascribed a value in monetary terms. (6) Each case, ultimately, will depend on its own facts and circumstances (para 58).