Proceeds Of Crime Act 2002 Flashcards
What are the relevant principles of the proceeds of crime act 2002?
Gives power to courts and police to seize proceeds of crime, this lesson is limited to the following:
1) by conferring powers on courts to confiscate the proceeds of crime where persons are convicted of a crime; and
2) by conferring powers on courts to recover cash that is the proceeds of unlawfully actively or intended for use in such activity
Confiscation on conviction
Confiscation orders are available following a criminal conviction. The purpose of this is to to recover the financial benefits that the offender has obtained from his/her criminal conduct.
The court calculates the value of the benefit and orders the offender to pay. They may have to sell assets to raise the money.
Officers involved who think a confiscation order maybe appropriate should liaise with the financial investigation unit for advice
Proceedings to consider confiscation orders are conducted according to the civil standards of proof I.e. balance of probabilities, a lower threshold than that required to secure a criminal conviction i.e. beyond reasonable doubt.
In certain circumstances the court is empowered to assume that that defendants asserts and his or her income and expenditure 6 years before proceedings were brought, have been derived from criminal conduct and they calculate the confiscation order accordingly.
See page 3 top half for civil recovery of cash.
Long and short you can still make a civil recovery even without criminal conviction.
Make sure you always submit intel logs to support instances where a person has been found not guilty etc.
Seizure of cash? What are police and sheriff powers?
Sections 289 and 294 of the Proceeds of crime act 2002 give police the powers to search for and seize cash that is the proceeds of unlawful conduct or intended for use in such conduct, provided the suspect cash is thought to exceed the threshold set under the act.
Section 241 explains unlawful conduct as any conduct constituting an offence in Scotland. It also includes any conduct which occurs elsewhere in the United Kingdom or abroad provided the conduct was also an offence where it occurred.
A sheriff kay order the forfeiture of cash or any part of it, if satisfied that it is the proceeds of crime or is intended for use in unlawful conduct. The evidential standard that applies is the balance of probabilities as the forfeiture hearing takes place in a civil rather than criminal court.
What constitutes cash under the act?
The act in powers of the police and courts to recover all sorts of assets that can be linked to the proceeds of crime. this lesson has focused the recovery of cash.
Under section 269 (6) of the proceeds of crime act 2002 to cash as identified as: –
• Notes and coins in any currency
• Postal order
• Cheques of any kind, including travellers cheques
• Bankers drafts
• Bearer bonds and bearer shares
That is found at ANY PLACE in the UK.
What is the cash threshold?
Section 303 of the act established a minimum amount in relation to the cash which can be seized in order to guard against excessive and disproportionate use of the power of seizure.
The actual amount is not stated in the act as it can be varied by various orders enacting as required. The current minimum set in 2011 is £1000.
Powers of search for proceeds of crime?
Search power comes from s289 include the power to search a person and detain him or her for as long as is necessary for that purpose. However, this does not extend to requiring a strip search.
These powers can only be used on private premises. Where a constable has entered the premises under common law (most commonly by occupier invitation) or under statutory warrant.
Proceeds of crime act 2002 does not provide any power to enter and search private premises except where a constable has entered under common law (invited by occupier) or in possession of a statutory warrant.
Prior to any search on on person or premises an officer might have approval from a sheriff. If not possible approval from an inspector or above is required.
In cases of extreme urgency where it is not possible to obtain approval from either of the above, as a last resort an officer can self authorise and obtain necessary approval retrospectively.
Cash seized can’t be retained for more than 48 hours except by order of a sheriff.
Can be extended if:-
Sheriff may make an order if he or she is satisfied that there are reasonable grounds for the officers suspicion and that the continued retention of cash is justified for the purposes of investigating its origins or intended use. Or/
The Sheriff may also make an order for continued retention of cash if consideration is being given to the bringing of criminal proceedings or if such proceedings have even commenced and not concluded.
Monies detained would in most cases be put in an interest bank account pending outcome of proceedings “. Thus if the money was to be returned to the person, he or she could have no claim in relation to lost interest.
Cash or part may be released to the person from whom it was seized by a sheriff in response to an application by the person on the grounds that it’s not the proceeds of crime and is not intended for use in unlawful conduct.
A constable or PF may realise the cash or part after notifying the sherif if they believe the detention can no longer be justified.
What are the practical steps involved in making a cash seizure?
Cash seizure proceedings under the Proceeds of Crime Act 2002 may only be initiated in circumstances where there is no chance of charges being preferred and a criminal case being conducted.
If criminal procedure is even remotely possible, the cash should be taken as a production.
NOTE Cash seized as a production can revert to a “seizure” under the proceeds of Crime act 2002 but NOT vice versa.
Cash recovered can be amalgamated (combined) even if found on different people provided you can show:-
• A connection between people and
• That the cash is the proceeds of crime or intended for use in unlawful actively.
Thus you could seized cash from three associated drug dealers in a house where each is in possession of £500 as the amalgamated sim comes to £1000+
Cash means more than just British notes or coins. You may have to calculate
Exchange values of foreign currency
Establish the value of bonds and shares
Where possible cash should be counted in the presence of the subjects on camera. 2 officers should be present.
BEST PRACTICE complete a “proceeds of crime cash seizure questionnaire” with subject at the time of seizure. This gives the subject the opportunity to account for why they have the cash. A refusal to provide any explanation can be used in court to support seizure so all questions should be asked and answered (and refusals noted)
NOTE caution on the questionnaires is a related to civil proceedings. As such this caution should not be used when interviewing suspects about criminal matters.
All cash seizures under the proceeds of crime act 2002 must be presented at the appropriate sherif court within 48 hours of the seizure. They are initially reported to the PF.
Report must include
• full circumstances leading to the cash being seized
• the exact amount of cash seized
• an explanation to why there is no criminal investigation
• a summary of explanations given to subjects
• details of the officers involved and any other witnesses
• the exact time and date of the cash seizure and
• any other info offices consider relevant
This will be submitted to FIU who will conduct further enquiries and submit the report to the sherif court requesting forfeiture.
