DRT wrote:JacobH wrote: ii) my reading of the Insolvency Act 1986 suggests that a person facing bankruptcy proceedings may not commit an offence if he or she drinks his own Port (though before pursuing this course, I recommend taking legal advice)
Subject to taking the recommended legal advice, would you, without predjudice, think that the sharing of port with one's friends whilst facing bankruptcy was permissible under the law (of England and Wales)?
To paraphrase a PM I’ve just sent: this is an interesting point. In English personal insolvency law, this would be an s357 Insolvency Act 1986, ‟Fraudulent disposal of property” offence. This is a difficult offence, rarely prosecuted as its provisions are extremely wide. The main part is:
The bankrupt is guilty of an offence if:
i) he makes or causes to be made, or has in the period of five years ending with the commencement of the bankruptcy made or caused to be made, any gift or transfer of, or any charge on, his property;
This is not an area of criminal law with which I am familiar, but I’ve had a quick look at what the texts say on it. Firstly, my reading is that it does not cover the destruction of assets. Therefore, should the potential bankrupt drink his most valuable bottles, I doubt if he could be prosecuted. However, this may not help the offline situation, whereby the consumption of others may constitute a gift to them of those parts of the assets.
The difficulty in this section, as is probably obvious, is that five years is a long time and the potential bankrupt may have no knowledge of his impending bankruptcy. However, here s352, which provides a ‟defence of innocent intention” might come into force. For a s357 offence (unlike many others in the same Act), due to the provisions of the Human Rights Act, there is no reverse burden on the defendant (Attorney General's Reference (No 1 of 2004)
[2004] EWCA Crim 1025). Therefore, should evidence be adduced that ‟nothing in the cellar which can be liquidated for the creditors” simply implied that
bona fide liquidation take place by
members (e.g. as a regular offline for which the host was paid for his Port), I think no offence would be committed unless the prosecution could shown, beyond reasonable doubt, that this was false. Equally, even if the offence could be made out, I wonder if it would pass the public interest test for a prosecution. Such a question would depend on the value of the estate relative to the value of the assets liquidated (as well as how close to the bankruptcy the offline took place). In any case, the unusual nature of the offence, and the even more unusual way in which it is alleged it would be committed would almost certainly make it subject to appeal for clarification on the law.