Proceeds of Crime Act 2002

Question 1

Outline the relevant principles of the Proceeds of Crime Act 2002

Answer 1

The Proceeds of Crime Act 2002 confers significant powers on the police and courts to seize the proceeds of crime, but this lesson is limited to the following aspects of it:

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 unlawful activity or intended for use in such activity

Question 2

What is a Confiscation Order?

Answer 2

Available following a criminal conviction to recover the financial benefit obtained via criminal conduct.

A sum is calculated by the court valuing the benefit obtained and orders the offender to pay an equivalent sum, which may result in the offender having to sell assets in order to raise the money.

Proceedings to consider confiscation orders are based on civil standard of proof, i.e. balance of probabilities and in some cases may consider offender’s assets/income/expenditure in the 6 years prior to proceedings.

There also exists provision for civil confiscation/forfeiture, i.e. in cases where there are insufficient grounds for a criminal prosecution, or where the offender exists outwith the jurisdiction of Scottish courts (or has died).

Question 3

What is seizure of cash?

Answer 3

Sections 289 and 294 of the Proceeds of Crime Act 2002 provide police with the power 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 THRESHOLD SET UNDER THE ACT (£1000 AS OF 2011)

A Sheriff may order the forfeiture of cash or any part of it if satisfied that it is the proceeds of crime, or intended for such purpose.

“Cash” includes:

Notes and coins in any currency
Postal Orders
Cheques
Bankers’ Drafts
Bearer Bonds and Bearer Shares

Question 4

What are the associated search and seizure powers associated with seizure of cash?

Answer 4

Under Section 289, power is conferred to conduct a standard search of a person on private premises (but only where access has been legally obtained, or conferred by warrant. No power of entry is attached.

Must be approved by:

A Sheriff
An Inspector or above where not practical to contact Sheriff
Self-approval in emergencies

Cash seized will be held in an interest-bearing account in case it must be returned and can only be held for 48 hours (except by order of the Sheriff).

Question 5

Outline the considerations and practical steps involved in making a cash seizure

Answer 5

Cash seizure proceedings can only be initiated where there is no chance of charges being preferred and a criminal case being conducted (otherwise cash should be seized as a production).

Cash can be seized from multiple sources and amalgamated, provided you can prove a link exists between them (i.e. three associated drug dealers sharing a property where the total amount of cash exceeds £1000).

Cash should ideally be counted in the presence of the subject, and on camera.

Two or more officers should always be present.

A Proceeds of Crime Questionnaire should be completed. Refusal to complete a questionnaire can be used in court to support the seizure.

Cash seizures must be presented to the Sheriff within 48 working hours and a report must include:

Full circumstances of seizure
Exact amount of cash seized
An exlanation of lack of criminal investigation
Summary of explanation given by subjects
Details of officers and witnesses
Exact time and date of seizure
Any other relevant information