The High Court in R v Hogan [2007] EWHC (Admin) 978 had to consider the defence of adequate consideration to a section 329 POCA 2002 offence.
The defendant had purchased scaffolding, from a third party. The scaffolding had belonged to his former employer. The defendant paid only one-sixth of the value of the scaffolding, he only knew the seller by their first name, he paid cash and did not obtain a receipt.
The Court had to consider whether the prosecution had the burden of proof to show that the defendant had not acquired the property for adequate consideration. The Court held that once the issue of adequate consideration had been raised, the matter should be regarded as an element of the offence, which had to be proved by the prosecution to the normal standard.
The Court stated that section 329(2)(c) determined that where the court had concluded that adequate consideration had been given for the acquisition of property, then no offence would be made out under the Act even if the offender had known that the property had been stolen.
The case also raised the issue of the correct test to determine whether the consideration was adequate or not. The Court held that the question of adequacy of consideration was a separate issue from the state of mind of the offender and accordingly required a separate test. The Court stated that the issue of whether the consideration provided had been adequate had to be decided as a question of fact by the jury on a case-by-case basis. The question of whether consideration is adequate is an objective one.
Michael Potts, a partner at Byrne and Partners, prepared this summary of the court's finding.