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The Proceeds of Crime The Law and Practice of Restraint, Confiscation, and Forfeiture

by: Millington, Trevor; Sutherland Williams, Mark

The Proceeds of Crime The Law and Practice of Restraint, Confiscation, and Forfeiture

by: Millington, Trevor; Sutherland Williams, Mark

ISBN 13:
9780199264773
ISBN 10:
0199264775
Format: Hardcover
Copyright: 12/18/2003
Publisher: Oxford University Press
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Summary

This is a comprehensive and practical step-by-step manual on the law relating to restraint, receivership, confiscation, and money laundering. The book includes detailed coverage of the Proceeds of Crime Act 2002 which extends the law surrounding asset forfeiture to cover all criminal activity.

List of Abbreviations

xliii

Table of Cases

xlv

Table of Legislation

1. Setting the Scene

A. Introduction

1.01

(1)

B. Why was Confiscation Law Enacted?

1.02

(1)

C. The Object of the Confiscation Regime

1.07

(1)

D. The Drug Trafficking Act 1994: A Summary

1.09

(1)

E. The Criminal Justice Act 1988: A Summary

1.11

(1)

F. The Proceeds of Crime Act 2002: A Summary

1.12

(1)

G. The Assets Recovery Agency

1.15

(1)

H. The International Element

1.16

(1)

I. Money Laundering

1.17

(1)

2. Restraint and Charging Orders under the DTA and CJA

A. Introduction

2.01

(1)

(1) Purpose of restraint and charging orders

2.02

(1)

(2) Freezing orders distinguished

2.03

(1)

B. Restraint Orders under the Drug Trafficking Act 1994

2.07

(1)

(1) Proceedings have been instituted or an application made

2.08

(1)

(2) What are drug trafficking offences?

2.10

(1)

(3) Section 25(1)(b) proceedings have not been concluded

2.11

(1)

(4) Section 25(1)(c): Reasonable cause to believe the defendant has benefited from drug trafficking

2.15

(1)

(5) What is drug trafficking?

2.17

(1)

(6) Section 25(3): proceedings to be instituted in the future

2.19

(1)

C. Restraint Orders under Part VI of the Criminal Justice Act 1988

2.23

(1)

(1) Proceedings have been instituted in England and Wales

2.25

(1)

(2) Offences to which Part VI of the CJA applies

2.26

(1)

(3) Proceedings have not been concluded

2.28

(1)

(4) Proceedings may result or have resulted in a conviction for an offence of a relevant description from which the defendant may have benefited

2.30

(1)

(5) Benefit

2.31

(1)

D. Does the Prosecutor Have to Prove there is a Risk of Dissipation of Assets?

2.37

(1)

E. The Scope and Duration of Restraint Orders

(1) Parties restrained by the order

2.43

(1)

(2) Limited companies

2.45

(1)

(3) Property restrained by the order

2.50

(1)

(4) Legitimately acquired assets

2.52

(1)

(5) Property that is not realisable under the legislation

2.54

(1)

(6) Meaning of property

2.55

(1)

(7) Overseas assets

2.56

(1)

(8) Duration of restraint orders

2.58

(1)

F. Terms and Conditions upon which Orders are made

2.63

(1)

(1) Costs and expenses incurred in complying with the order

2.65

(1)

(2) Legal expenses

2.70

(1)

(3) Businesses

2.72

(1)

G. Charging Orders

(1) What is a charging order?

2.74

(1)

(2) When may a charging order be made?

2.75

(1)

(3) What property can be charged?

2.77

(1)

(4) Protecting the charging order

2.79

(1)

(5) Applications to vary or discharge charging orders

2.80

(1)

(6) Relationship between restraint and charging orders

2.82

(1)

3. Management Receivers under the DTA and CJA

A. Introduction

3.01

(1)

B. Jurisdiction to Appoint Management Receivers

3.04

(1)

C. Status of the Receiver on Appointment

3.11

(1)

D. Powers, Duties and Liabilities of the Receiver

3.13

(1)

(1) Duties and liabilities of the Receiver

3.19

(1)

(2) Receiver's accounts

3.22

(1)

E. Remuneration of Receivers

3.25

(1)

F. Taxation and Receivers

3.37

(1)

4. Ancillary Orders: Seizure, Disclosure and Repatriation of Assets

A. Introduction

4.01

(1)

B. Seizure of Assets

4.02

(1)

C. Disclosure Orders

4.06

(1)

(1) Jurisdiction to make the order

4.07

(1)

(2) The problem of self incrimination

4.13

(1)

(3) Form of disclosure orders

4.24

(1)

(4) Disclosure and third parties

4.25

(1)

(5) Disclosure cannot be ordered against the prosecutor

4.26

(1)

(6) Advising the defendant or third party required to disclose

4.28

(1)

D. Repatriation of Assets

4.37

(1)

(1) Jurisdiction to make repatriation orders

4.39

(1)

(2) Form of repatriation order

4.44

(1)

5. Applications to Vary or Discharge Restraint Orders made under the DTA and CJA

A. Introduction

5.01

(1)

B. Applications for the Discharge of the Order

5.02

(1)

(1) On the conclusion of proceedings

5.03

(1)

(2) Procedural irregularities by the prosecutor

5.04

(1)

(3) Failure to give full and frank disclosure

5.07

(1)

C. Applications to Vary the Restraint Order

5.08

(1)

(1) Legal expenses

5.09

(1)

(2) General living expenses

5.15

(1)

(3) Companies and other business entities

5.17

(1)

D. The Principles on which the Court Acts: The 'Legislative Steer'

5.18

(1)

E. The Source of Payment of Legal Fees and General Living Expenses

5.25

(1)

(1) Assets not legitimately acquired

5.26

(1)

(2) Assets that are prosecution exhibits

5.28

(1)

6. Enforcement of Restraint of Receivership Orders: Contempt of Court

A. Introduction

6.01

(1)

(1) Ways in which breaches may be committed

6.02

(1)

(2) Sanctions available for breach of restraint and receivership orders

6.03

(1)

B. Procedure on Applications

(1) Strict compliance necessary

6.05

(1)

(2) The burden and standard of proof

6.06

(1)

(3) Commencing proceedings

6.07

(1)

(4) Contents of the application notice

6.08

(1)

(5) The evidence in support of the application

6.10

(1)

(6) Proving service of the order

6.11

(1)

(7) Proving the breach

6.15

(1)

(8) Issuing and serving the application

6.16

(1)

(9) The defendant's response

6.18

(1)

C. The Hearing

(1) Preliminary matters

6.20

(1)

(2) Procedure at the hearing

6.25

(1)

(3) Sentence

6.26

(1)

(4) Suspended committals

6.29

(1)

(5) Effect of being in contempt

6.30

(1)

(6) Purging contempt

6.31

(1)

(7) Appeals

6.33

(1)

7. Practice and Procedure in the High Court: DTA and CJA Cases

A. Introduction

7.01

(1)

B. The Woolf Reforms and the Overriding Objective

7.03

(1)

(1) Structure of the Civil Procedure Rules

7.06

(1)

(2) Terminology

7.07

(1)

(3) Evidence

7.08

(1)

C. Procedure on Applications for Restraint Orders

(1) Allocation of business

7.10

(1)

(2) Title of the proceedings

7.11

(1)

(3) Preparation of documentation

7.12

(1)

(4) The claim form

7.13

(1)

(5) The draft order

7.14

(1)

(6) The witness statement

7.16

(1)

(7) The duty of full and frank disclosure

7.19

(1)

(8) What additional matters should be disclosed?

7.21

(1)

(9) The consequences of non-disclosure

7.23

(1)

D. The Hearing

7.27

(1)

(1) Service of the order

7.30

(1)

E. Procedure on Applications to Vary or Discharge the Order

7.33

(1)

(1) Variation by consent: consulting the prosecutor

7.34

(1)

(2) Applying to the court

7.36

(1)

(3) Drafting the witness statement or affidavit

7.37

(1)

(4) Drafting the order

7.39

(1)

(5) Issuing the application

7.40

(1)

(6) Service of the application

7.41

(1)

(7) Proof of service

7.42

(1)

(8) The hearing

7.43

(1)

(9) Costs

7.45

(1)

(10) After the hearing: drafting and serving the order

7.46

(1)

(11) Variation applications by the prosecutor

7.47

(1)

(12) Appeals

7.49

(1)

8. Restraint and Receivership under the Proceeds of Crime Act 2002

A. Introduction

8.01

(1)

(1) Overview

8.02

(1)

B. Restraint Orders

8.03

(1)

(1) Conditions for obtaining restraint orders under POCA

8.04

(1)

(2) The first condition: criminal investigations

8.05

(1)

(3) The second condition: criminal proceedings already started

8.07

(1)

(4) The third condition: application for reconsideration to be made

8.12

(1)

(5) The fourth condition: reconsideration of benefit

8.14

(1)

(6) The fifth condition: reconsideration of available amount

8.15

(1)

(7) Making the order

8.18

(1)

(8) Exceptions

8.19

(1)

(9) Legal expenses

8.20

(1)

(10) Ancillary orders

8.22

(1)

(11) Variation and discharge of the order

8.24

(1)

(12) Charging orders

8.25

(1)

C. Management Receivers

8.26

(1)

(1) Powers of management receivers

8.28

(1)

(2) Restriction of the use of powers

8.31

(1)

D. Powers of the Court and Receiver: The 'Legislative Steer'

8.33

(1)

E. Procedure on Applications

8.36

(1)

(1) Applications for restraint orders

8.37

(1)

(2) The order

8.39

(1)

(3) Variation or discharge applications by persons affected by restraint orders

8.41

(1)

(4) Variation applications by the person who applied for the order

8.44

(1)

(5) Discharge applications by the person who applied for the order

8.46

(1)

(6) Receivership proceedings

8.47

(1)

(7) The application for appointment

8.48

(1)

(8) Applications for the conferment of powers on receivers

8.50

(1)

(9) Applications to vary or discharge receivership orders

8.52

(1)

(10) Security

8.53

(1)

(11) Remuneration of receivers

8.55

(1)

(12) Receiver's accounts

8.56

(1)

(13) Non-compliance by a receiver

8.57

(1)

F. Provisions as to Hearings and Evidence

(1) Restraint and receivership hearings in the Crown Court

8.58

(1)

(2) Evidence

8.59

(1)

(3) Evidence should be in writing

8.60

(1)

(4) Hearsay evidence

8.62

(1)

(5) Expert evidence

8.63

(1)

(6) Disclosure and inspection of documents

8.64

(1)

(7) Court documents

8.65

(1)

(8) Service of documents

8.66

(1)

(9) Service by an alternative method

8.68

(1)

(10) Service outside the jurisdiction

8.69

(1)

(11) Proof of service

8.70

(1)

(12) Consent orders

8.71

(1)

(13) Slips and omissions

8.72

(1)

(14) Supply of documents from court records

8.73

(1)

(15) Preparation of documents

8.75

(1)

(16) Change of solicitor

8.76

(1)

(17) Costs

8.77

(1)

(18) Assessment of costs

8.79

(1)

(19) Time for complying with order for costs

8.80

(1)

9. Preparing for Confiscation Hearings under the DTA

A. Introduction

(1) When does the DTA apply?

9.01

(1)

(2) The objective of DTA proceedings

9.02

(1)

B. Preparing for Crown Court DTA Confiscation Hearings

9.04

(1)

(1) When are DTA confiscation hearings held?

9.05

(1)

(2) Offences which constitute drug trafficking offences

9.10

(1)

(3) Adjournment of the enquiry pending further enquiries

9.11

(1)

(4) Postponements of confiscation proceedings

9.12

(1)

C. Postponing DTA Hearings

9.13

(1)

(1) What amounts to exceptional circumstances?

9.15

(1)

(2) No requirement to find further exceptional circumstances

9.20

(1)

(3) Postponement: absence of the defendant

9.21

(1)

(4) Six month rule: no retrospective extension

9.22

(1)

(5) Purpose of postponement: further information

9.24

(1)

(6) The changing face of the law in relation to adjourning and postponing DTA hearings

9.26

(1)

D. Postponement Pending Appeal

9.39

(1)

(1) Application for postponement pending appeal-procedure

9.40

(1)

(2) Sentence

9.41

(1)

E. Standard of Proof

9.43

(1)

F. Preparatory Steps for a DTA Hearing

(1) Statements relating to drug trafficking

9.45

(1)

(2) Section 11 statements

9.46

(1)

(3) The prosecutor's statement

9.48

(1)

(4) The defendant's statement

9.59

(1)

(5) Further provision of information by the defendant

9.72

(1)

(6) Consequences of the defendant failing to respond to the prosecutor's statement

9.76

(1)

(7) Valuing the drugs

9.80

(1)

(8) Further statements by the prosecutor

9.81

(1)

(9) Securing the attendance of witnesses

9.82

(1)

G. Reconsideration of Case where the Court has not Proceeded under s 2

9.83

(1)

H. When is the Date of Conviction for the Purposes of s 13?

9.87

(1)

10. The DTA Confiscation Hearing

A. Introduction

(1) Purpose of the hearing

10.01

(1)

(2) The burden and standard of proof

10.03

(1)

B. Benefit from Drug Trafficking

10.07

(1)

(1) Statutory provisions as to benefit

10.13

(1)

(2) Payments or other rewards

10.14

(1)

(3) Are drugs seized from the defendant a payment or reward?

10.18

(1)

(4) The payment or other reward must be received in connection with drug trafficking

10.22

(1)

(5) Knowledge that the payment comes from drug trafficking

10.24

(1)

(6) Assessing the defendant's proceeds of drug trafficking

10.26

(1)

(7) Proceeds not profits

10.30

(1)

(8) Joint benefit

10.34

(1)

C. The Assumptions

10.36

(1)

(1) When the assumptions must not be applied

10.39

(1)

(2) No other assumptions may be made

10.43

(1)

(3) When may the assumptions be applied?

10.44

(1)

(4) At what stage may the assumptions be applied?

10.48

(1)

(5) Effect of applying the assumptions

10.49

(1)

(6) Rebutting the assumptions

10.51

(1)

(7) Certificates of benefit

10.53

(1)

(8) Determining the amount to be realised

10.55

(1)

D. Burden of Proof

10.56

(1)

(1) Meaning of realisable property

10.59

(1)

(2) Property held by the defendant

10.60

(1)

(3) Margin for error

10.62

(1)

(4) Assets jointly held with third parties

10.63

(1)

(5) Assets held overseas

10.64

(1)

(6) Gifts

10.65

(1)

(7) When is a gift caught by the Act?

10.66

(1)

(8) Obligations having priority

10.71

(1)

E. Valuing Property

10.72

(1)

(1) Is it appropriate to make a confiscation order when the defendant is likely to be ordered to forfeit the drugs?

10.75

(1)

(2) Is the amount that the court can find in respect of a confiscation order limited to the amount claimed by the Crown?

10.76

(1)

F. Making the Confiscation Order

10.77

(1)

(1) Relationship with forfeiture orders and other legislation

10.78

(1)

(2) Relationship between the confiscation order and the sentence

10.79

(1)

(3) Imprisonment in default

10.84

(1)

(4) Orders for the payment of costs

10.88

(1)

(5) Confiscation orders and the ECHR

10.89

(1)

(6) Confiscation orders against defendants who die or abscond

10.96

(1)

(7) Post-conviction orders

10.98

(1)

(8) Pre-conviction cases

10.99

(1)

G. Rules of the Supreme Court

10.101

(1)

H. Procedural Matters

10.105

(1)

I. Confiscation Hearings under the DTA: Index of Defined Expressions

10.107

(1)

11. Preparing for Confiscation Hearings under the CJA

A. Introduction

(1) The purpose of CJA confiscation hearings

11.01

(1)

B. Preparing for CJA Confiscation Hearings

(1) When does the CJA apply?

11.05

(1)

(2) Preliminary matters

11.07

(1)

(3) When may a CJA confiscation hearing be held?

11.08

(1)

C. Offences of a Relevant Description

11.09

(1)

(1) Relevant criminal conduct

11.11

(1)

(2) When does a defendant benefit from an offence?

11.12

(1)

(3) The standard of proof

11.13

(1)

(4) The burden of proof

11.15

(1)

(5) The requirement to give notice

11.17

(1)

(6) Failure to give notice under the CJA

11.18

(1)

(7) Court may still proceed

11.19

(1)

(8) Qualifying offences under section 72AA

11.20

(1)

(9) The problem of victims

11.22

(1)

(10) The jurisdiction of the Crown Court following committal

11.24

(1)

(11) Offences where the CJA 1988 applies in the Magistrates' Court

11.26

(1)

D. Adjournment of the Proceedings

11.27

(1)

(1) More than one postponement allowable

11.31

(1)

(2) What constitutes exceptional circumstances?

11.32

(1)

(3) Considerations to be applied when postponing confiscation hearings

11.37

(1)

(4) Postponement runs from date of conviction

11.42

(1)

(5) Postponement pending appeal

11.43

(1)

(6) Sentence pending CJA hearing

11.44

(1)

E. Section 73 Prosecutor's Statements

11.47

(1)

(1) Form and content of the statement

11.50

(1)

(2) Service of the statement

11.52

(1)

(3) The defendant's statement

11.53

(1)

(4) Importance of the defendant's reply

11.57

(1)

(5) Defendant's acceptance conclusive

11.59

(1)

(6) Obtaining information from the defendant 'at any time'

11.61

(1)

(7) Prosecutor's acceptance conclusive

11.64

(1)

(8) Consequences of the defendant failing to respond to the prosecutor's statement

11.66

(1)

(9) Further statements by the prosecutor

11.67

(1)

(10) Relationship between disclosure statements and confiscation hearings

11.68

(1)

12. The CJA Confiscation Hearing

A. Introduction

(1) Amendments made by the Proceeds of Crime Act 1995

12.01

(1)

(2) When to hold proceedings

12.02

(1)

B. Jurisdiction to Hold a Confiscation Hearing under the CJA

12.03

(1)

(1) The problem of victims

12.05

(1)

(2) Purpose of the hearing

12.06

(1)

(3) Burden and standard of proof

12.07

(1)

(4) Prosecution and defence statements

12.09

(1)

C. Benefit

(1) Calculating benefit under the CJA

12.12

(1)

(2) Relevant criminal conduct

12.13

(1)

(3) Offences of a relevant description

12.16

(1)

(4) Pecuniary advantage

12.18

(1)

(5) Extended benefit-application of the assumptions

12.24

(1)

(6) When may the assumptions be applied?

12.26

(1)

(7) The assumptions that can be made

12.29

(1)

(8) When the assumptions should not be applied

12.31

(1)

(9) Gifts caught by the Act

12.33

(1)

(10) Defendant does not have to be able to realise gift

12.35

(1)

(11) Distinction between realisable property and gifts

12.40

(1)

(12) Determining the amount that might be realised

12.43

(1)

D. The Defendant's Benefit

(1) The amount to be recovered

12.44

(1)

(2) Realisable property

12.45

(1)

(3) The assets of the offender are not restricted to those that he has derived from the criminal activity in question

12.48

(1)

(4) Inflationary adjustment

12.51

(1)

(5) The reducing value of property

12.54

(1)

(6) Abolition of the £10,000 'minimum amount' requirement

12.55

(1)

(7) Imprisonment in default

12.56

(1)

(8) Serving the default sentence does not extinguish the debt

12.48

(1)

E. Confiscation Orders and Sentencing for the Offence

12.59

(1)

(1) Power to vary sentence

12.61

(1)

(2) Prosecution costs

12.63

(1)

(3) Third parties and confiscation law

12.64

(1)

13. Variations to Confiscation Orders under the DTA and CJA

A. Introduction

13.01

(1)

B. Applications by the Prosecutor in Drug Trafficking Cases

13.04

(1)

(1) Section 13: where the court has not proceeded under the Act

13.05

(1)

(2) Time limits

13.08

(1)

(3) Section 14: where the court determines the defendant has not benefited from drug trafficking

13.09

(1)

(4) Section 15: revised assessment of the proceeds of drug trafficking

13.12

(1)

(5) Procedure on applications

13.14

(1)

(6) Increase in realisable property

13.15

(1)

(7) Procedure on applications

13.18

(1)

C. CJA Cases

13.20

(1)

(1) Section 74A: review of cases where the proceeds of crime have not been assessed

13.21

(1)

(2) Section 74B: revision of assessment of the proceeds of crime

13.25

(1)

(3) Section 74C: revision of assessment of amount to be recovered

13.27

(1)

(4) Increase in realisable property

13.28

(1)

D. Applications by the Defendant for a Decrease in the Confiscation Order

13.29

(1)

(1) Procedure on applications

13.38

(1)

14. Preparing for Confiscation Hearings under POCA

A. Introduction

(1) The evolution of confiscation hearings

14.01

(1)

(2) When do POCA confiscation hearings have to be held

14.06

(1)

B. Confiscation in the Magistrates' Court

14.07

(1)

(1) Section 70: committal by a Magistrates' Court

14.08

(1)

(2) The circumstances where a Magistrates' Court may commit

14.11

(1)

(3) If sections 6(1)-(3) are satisfied, how must the court proceed?

14.13

(1)

C. How is 'Criminal Lifestyle' Defined?

14.14

(1)

(1) What are 'lifestyle offences'?

14.15

(1)

(2) 'Criminal lifestyle' and relevant benefit of not less than £5,000

14.19

(1)

(3) How is 'relevant benefit' defined?

14.20

(1)

D. Criminal Conduct and Benefit

14.26

(1)

(1) General criminal conduct

14.27

(1)

(2) Particular criminal conduct

14.28

(1)

(3) The relationship between general and particular conduct

14.29

(1)

(4) When does a defendant's conduct form part of his criminal activity?

14.30

(1)

(5) When does a person benefit from criminal conduct?

14.31

(1)

E. Postponement of POCA Confiscation Hearings

14.33

(1)

(1) What is the 'permitted period'?

14.35

(1)

(2) Date of conviction

14.36

(1)

(3) Further postponements

14.37

(1)

(4) Who may apply for a postponement?

14.39

(1)

(5) The effect of the court failing to follow the postponement provisions

14.40

(1)

(6) Postponement pending appeal

14.42

(1)

(7) Sentencing

14.43

(1)

(8) Power to vary sentence

14.44

(1)

F. Preparatory Steps for a POCA Hearing

(1) Section 16 statements of information

14.45

(1)

(2) The purpose of section 16 statements

14.49

(1)

(3) The content of section 16 statements

14.50

(1)

(4) A duty of full and frank disclosure?

14.53

(1)

(5) When should the prosecutor's statement be served?

14.54

(1)

(6) Disclosure evidence inadmissible

14.55

(1)

(7) Upon whom should the prosecutor's statement be served?

14.56

(1)

(8) The defendant's statement

14.58

(1)

(9) Defendant's acceptance conclusive

14.61

(1)

(10) Failure to respond by the defendant

14.63

(1)

(11) Consequences of the defendant failing to respond to the prosecutor's statement

14.66

(1)

(12) The problem of self-incrimination

14.70

(1)

(13) Further provision of information by the defendant

14.73

(1)

(14) Further protection against self-incrimination

14.78

(1)

(15) Prosecutor's acceptance conclusive

14.79

(1)

(16) Failure to provide the information ordered

14.80

(1)

(17) Further statements by the prosecutor

14.81

(1)

(18) Securing the attendance of witnesses

14.83

(1)

15. The POCA 2002 Confiscation Hearing

A. Introduction

15.01

(1)

B. A Mandatory Regime

15.03

(1)

C. The Burden and Standard of Proof

15.06

(1)

D. The Recoverable Amount

15.09

(1)

(1) Recoverable amount: victims

15.10

(1)

(2) The 'available amount'

15.11

(1)

(3) Court must give reasons

15.14

(1)

E. Tainted Gifts

15.15

(1)

(1) When is a gift tainted?

15.16

(1)

(2) Gifts and their recipients

15.21

(1)

(3) Value of tainted gifts

15.24

(1)

(4) Value of property obtained from criminal conduct

15.27

(1)

F. The Defendant's Benefit

15.29

(1)

(1) General criminal conduct

15.30

(1)

(2) Rule against double accounting

15.31

(1)

(3) Particular criminal conduct

15.33

(1)

G. The Assumptions: Section 10

15.34

(1)

(1) The four assumptions

15.36

(1)

(2) The 'relevant day'

15.37

(1)

(3) The 'date of conviction'

15.39

(1)

(4) When the assumptions do not apply

15.40

(1)

H. Time for Payment

15.42

(1)

(1) Imprisonment in default

15.45

(1)

(2) Interest on unpaid sums

15.48

(1)

I. The Effect of a Confiscation Order on Sentence and the Court's Other Powers

15.49

(1)

(1) The relationship between the confiscation order and compensation

15.50

(1)

(2) The importance of following the provisions of POCA

15.52

(1)

(3) Interpretation: confiscation and POCA

15.54

(1)

16. Reconsideration of Confiscation Orders under POCA and the Defendant who Absconds

A. Introduction

16.01

(1)

B. Reconsideration of Case where no Confiscation Order was Originally Made

16.02

(1)

(1) How are the 'relevant date' and the 'date of conviction' defined?

16.05

(1)

(2) The status of previous orders of the court and compensation

16.08

(1)

(3) Procedure: applications under section 19 of the Act

16.09

(1)

(4) Statements of information

16.10

(1)

C. Reconsideration of Benefit where no Confiscation Order was Originally Made

16.11

(1)

(1) The first condition

16.12

(1)

(2) The second condition

16.13

(1)

(3) The status of previous orders of the court

16.18

(1)

D. Compensation

16.19

(1)

(1) Procedure: applications under Section 20 of the Act

16.20

(1)

(2) Statements of information

16.21

(1)

E. Where a Confiscation Order has been Made: Reconsideration of Benefit

16.22

(1)

(1) When is the relevant time?

16.28

(1)

(2) What is the relevant amount?

16.29

(1)

(3) When is the date of conviction?

16.30

(1)

F. The Assumptions

16.31

(1)

(1) Revised benefit and relationship with the recoverable amount

16.32

(1)

(2) The status of previous orders of the court

16.35

(1)

(3) Exception to rule

16.36

(1)

(4) Changes in the value of money

16.37

(1)

(5) Procedure: applications under sections 19, 20, or 21 of the Act

16.38

(1)

G. Statements of Information

16.40

(1)

(1) Where a confiscation order has been made: reconsideration of the available amount

16.41

(1)

(2) What is the 'relevant amount' under section 22?

16.46

(1)

(3) Changes in the value of money

16.48

(1)

(4) Procedure: applications under section 22 of the Act

16.49

(1)

(5) Inadequacy of available amount: variation of the confiscation order

16.50

(1)

(6) Inadequacy of available amount in bankruptcy cases

16.54

(1)

(7) Procedure: variation of confiscation order due to inadequacy of available amount

16.55

(1)

(8) Inadequacy of available amount: discharge of confiscation order

16.56

(1)

(9) Under section 24 what are 'specified reasons'?

16.59

(1)

(10) Small amount outstanding: discharge of confiscation order

16.60

(1)

(11) Procedure: application by Justices' Chief Executive to discharge a confiscation order

16.61

(1)

(12) Procedure where the Crown Court discharges a confiscation order

16.64

(1)

H. Defendants who Abscond or Die

(1) Introduction

16.65

(1)

(2) The defendant who dies

16.66

(1)

(3) The defendant who absconds post conviction

16.67

(1)

(4) Procedure

16.68

(1)

(5) The defendant who absconds pre-conviction

16.73

(1)

(6) Two year rule

16.74

(1)

(7) Procedure

16.75

(1)

(8) What happens if the defendant later returns?

16.78

(1)

(9) Variation and discharge of orders under section 28

16.79

(1)

(10) Variation of order

16.80

(1)

(11) What is the relevant period?

16.82

(1)

(12) Procedure on applications for variation made by a former absconder

16.83

(1)

(13) Powers of the court

16.85

(1)

(14) Discharge of confiscation order where the defendant has absconded

16.87

(1)

(15) Discharge of order: undue delay or proceedings not continuing

16.88

(1)

(16) Procedure: application for discharge made by a former absconder

16.91

(1)

(17) Compensation: confiscation order made against absconder

16.94

(1)

17. Enforcement of Confiscation Orders under the CJA, the DTA, and the POCA

A. Introduction

17.01

(1)

B. Voluntary Satisfaction by the Defendant

17.03

(1)

C. Enforcement Receivers

17.09

(1)

(1) DTA cases: meaning of 'a confiscation order is not satisfied'

17.14

(1)

(2) CJA cases: meaning of 'proceedings have not been concluded'

17.15

(1)

(3) Meaning of 'subject to appeal'

17.16

(1)

(4) Powers of enforcement receivers

17.18

(1)

(5) Ancillary orders

17.19

(1)

(6) Procedure on applications

17.20

(1)

(7) The evidence in support

17.21

(1)

(8) The defendant's response to the application

17.23

(1)

(9) Third parties

17.26

(1)

(10) Advising third parties served with an application to appoint an enforcement receiver

17.30

(1)

(11) The court's order

17.33

(1)

(12) The matrimonial home: rights of spouses

17.34

(1)

(13) Status of the receiver on appointment

17.35

(1)

(14) Realisation of property

17.36

(1)

(15) Remuneration of enforcement receivers

17.37

(1)

(16) Dealing with the proceeds of realisation

17.39

(1)

(17) Discharge of the receiver

17.40

(1)

D. The Powers of the Magistrates' Courts

17.41

(1)

(1) Distress warrants

17.43

(1)

(2) Garnishee orders

17.44

(1)

(3) Warrants of commitment

17.45

(1)

E. Enforcement under POCA 2002

17.56

(1)

(1) Enforcement receivers

17.57

(1)

(2) Powers of enforcement receivers

17.58

(1)

(3) Director's receivers

17.61

(1)

(4) Powers of director's receivers

17.63

(1)

(5) Seized money

17.64

(1)

(6) Implementing the default sentence: director not the enforcing authority

17.68

(1)

(7) Implementing the default sentence: director appointed the enforcement authority

17.69

(1)

18. The Insolvent Defendant

A. Introduction

18.01

(1)

B. The Position under the DTA and CJA

18.02

(1)

C. Insolvency under POCA 2002

18.07

(1)

(1) Winding up of companies

18.09

(1)

(2) Floating charges

18.11

(1)

(3) Limited liability partnerships

18.12

(1)

(4) Protection of insolvency practitioners

18.13

(1)

D. Conclusion

18.14

(1)

19. Civil Recovery, Recovery Orders, and Interim Receivers

A. Introduction

19.01

(1)

B. New Legislation with Regard to Recovery Orders

(1) A power vested only in the ARA

19.05

(1)

(2) Proceedings even on acquittal

19.06

(1)

(3) Standard of proof

19.07

(1)

(4) Civil recovery in the High Court: proceedings for recovery orders

19.08

(1)

(5) Definition of 'property'

19.09

(1)

(6) Property obtained through unlawful conduct

19.12

(1)

(7) Unlawful conduct

19.15

(1)

(8) Procedure the ARA must follow

19.18

(1)

(9) How is 'associated property' defined?

19.20

(1)

(10) Interim receiving orders

19.23

(1)

(11) Vesting in realisation of recoverable property: recovery orders and trustees for civil recovery

19.24

(1)

(12) Exclusions to recovery orders

19.26

(1)

(13) Claims for a recovery order: practice and procedure

19.30

(1)

(14) What is a 'trustee for civil recovery'?

19.32

(1)

(15) What are the functions of the trustee?

19.33

(1)

(16) Powers of the trustee for civil recovery

19.35

(1)

(17) Rights of pre-emption

19.36

(1)

(18) Associated and joint property

19.40

(1)

(19) 'Excepted joint owner'

19.41

(1)

(20) Agreements about associated and joint property

19.42

(1)

(21) How is the amount calculated?

19.45

(1)

(22) Associated and joint property: default of agreement

19.49

(1)

(23) 'Interest'

19.52

(1)

(24) Compensation

19.53

(1)

C. Payment in Respect of Rights under Pension Schemes

19.54

(1)

(1) What does a pension scheme mean within this part of the Act?

19.57

(1)

(2) 'Trustees or managers'

19.59

(1)

(3) The Proceeds of Crime Act 2002 (Recovery from Pension Schemes) Regulations 2003

19.61

(1)

(4) Calculation and vertication of the value of rights under pension schemes

19.62

(1)

(5) Calculation and verification of the value of rights under destination arrangements

19.65

(1)

(6) Approval of manner of calculation and verification of the value of rights

19,66

(1)

(7) Time for compliance with a pension recovery order

19.67

(1)

(8) Costs of the trustees or managers of the pension scheme

19.68

(1)

(9) Consequential adjustment of liabilities under pension schemes

19.69

(1)

(10) Consent orders

19.72

(1)

(11) Consent order: pensions

19.74

(1)

(12) Where the court must not make a recovery order

19.77

(1)

(13) Forfeiture of cash and recovery orders

19.83

(1)

(14) Victims of criminal conduct

19.84

(1)

(15) Recovery orders and confiscation orders

19.85

(1)

(16) Supplementary provisions to section 278

19.86

(1)

(17) Victims of theft and other exemptions

19.87

(1)

(18) Compensation

19.90

(1)

(19) Time limit for compensation application

19.92

(1)

(20) The test the court should apply

19.95

(1)

(21) Financial threshold

19.97

(1)

(22) The Limitation Act 1980

19.98

(1)

(23) Definitions

19.100

(1)

(24) How is 'recoverable property' defined?

19.101

(1)

(25) The tracing of property

19.102

(1)

(26) Mixed property

19.103

(1)

(27) Accruing profits

19.104

(1)

(28) Granting interests

19.105

(1)

(29) Are there any exemptions or exceptions to property being 'recoverable'?

19.106

(1)

(30) Insolvency and recovery orders

19.112

(1)

D. Interim Receiving Orders

(1) Application for interim receiving order

19.114

(1)

(2) Purpose and conditions

19.118

(1)

(3) 'Good arguable case'

19.121

(1)

(4) Application for an interim receiving order; practice and procedure

19.122

(1)

(5) Powers of the High Court

19.125

(1)

(6) Functions of an interim receiver

19.126

(1)

(7) Contents of the order

19.128

(1)

(8) Restrictions on dealing with property

19.134

(1)

(9) Contents of the order in terms of reporting

19.137

(1)

(10) Protection against self-incrimination

19.138

(1)

(11) Protection for the receiver

19.139

(1)

(12) Applications to clarify the receiver's powers

19.140

(1)

(13) Applications for directions

19.141

(1)

(14) Power to vary or set aside

19.143

(1)

(15) Application to vary or discharge an interim receiving order; practice and procedure

19.144

(1)

(16) Exclusion of property which is not recoverable

19.145

(1)

(17) Legal expenses

19.148

(1)

(18) Interim receiverships over land

19.150

(1)

(19) Restriction on proceedings and remedies

19.152

(1)

(20) Reporting

19.156

(1)

20. Recovery and Seizure of Cash under the DTA

A. Introduction

20.01

(1)

B. The Scheme and Purpose of Part II

20.04

(1)

C. Criminal or Civil Proceedings?

20.07

(1)

(1) Seizure

20.09

(1)

(2) Does the prescribed sum of £10,000 need to be in the possession of a single person?

20.13

(1)

(3) Initial and subsequent interviews

20.15

(1)

(4) 'Any person's proceeds of drug trafficking'

20.17

(1)

(5) Continued detention

20.18

(1)

(6) 48 hour limit to be strictly complied with

20.19

(1)

D. Procedure on Applications

20.21

(1)

(1) Unattended despatch

20.24

(1)

(2) Duration of orders

20.25

(1)

(3) Interest bearing account

20.26

(1)

(4) Subsequent further detention applications

20.28

(1)

(5) Procedure on applications

20.29

(1)

(6) Procedural failures and Form C

20.30

(1)

(7) Early release of the cash

20.33

(1)

(8) Procedure on application for early release

20.36

(1)

(9) Joinder of third parties

20.39

(1)

(10) Forfeiture

20.40

(1)

(11) The effect of launching the forfeiture application

20.41

(1)

(12) The hearing

20.42

(1)

E. Burden and Standard of Proof

20.43

(1)

(1) Disclosure in section 43 cases

20.46

(1)

(2) Procedure at the hearing

20.48

(1)

(3) Order of evidence

20.50

(1)

(4) Submissions of no case to answer

20.53

(1)

F. Evidence: Practice and Procedure

(1) The drawing of inferences and illustrative cases

20.55

(1)

(2) No need for direct evidence

20.59

(1)

(3) Hearsay in civil cases

20.60

(1)

(4) The admissibility of previous convictions

20.64

(1)

(5) The position of lies told by the defendant

20.69

(1)

(6) Contamination of the money with drugs

20.70

(1)

G. The Order

20.73

(1)

(1) Action following the forfeiture order

20.74

(1)

(2) Costs

20.75

(1)

(3) Costs following the forfeiture hearing

20.78

(1)

(4) Costs under section 64 of the Magistrates' Courts Act 1980

20.83

(1)

(5) Appeals

20.84

(1)

(6) Can the 30-day period provided by section 44 for the date of an appeal be extended?

20.89

(1)

(7) Funding the appeal against forfeiture

20.90

(1)

H. Forfeiture and the ECHR

20.93

(1)

I. Detention and Forfeiture of Terrorist Cash

20.94

(1)

21. Recovery and Seizure of Cash under POCA

A. Introduction

21.01

(1)

B. The Seizure and Forfeiture of Cash

(1) Preliminary matters

21.05

(1)

(2) The circumstances in which cash may be seized

21.06

(1)

(3) The minimum amount that may be seized

21.08

(1)

(4) Does the minimum amount need to be in the possession of a single person?

21.09

(1)

(5) The meaning of 'cash'

21.10

(1)

(6) How is 'unlawful conduct' defined?

21.13

(1)

(7) Does the 'unlawful conduct' have to be specified?

21.14

(1)

(8) How is 'recoverable property' defined?

21.16

(1)

(9) The tracing of property

21.19

(1)

(10) Mixed property

21.20

(1)

(11) Are there any exemptions or exceptions to property being 'recoverable'?

21.21

(1)

(12) The initial enquiry

21.22

(1)

C. Procedure Prior to the First Hearing and Value

21.26

(1)

(1) The first detention hearing for the seized cash

21.30

(1)

(2) Unattended despatches

21.34

(1)

(3) 48-hour rule must be strictly complied with

21.38

(1)

(4) The test the court will apply at the 48 hour hearing and subsequent continued detention hearings

21.40

(1)

(5) Interest

21.42

(1)

(6) Interest-What does 'at the first opportunity' mean?

21.44

(1)

(7) Release of money over which no suspicion attaches

21.48

(1)

D. Continued Detention Hearings: Practice

(1) Form A

21.49

(1)

(2) Form B

21.53

(1)

(3) Form C

21.55

(1)

(4) Service of documents

21.56

(1)

(5) Procedure at the continued detention hearing

21.57

(1)

(6) What if the correct forms have not been served or the proper procedure not followed?

21.58

(1)

(7) Insolvency and further detention hearings

21.60

(1)

(8) Early release of the cash-to person from whom the cash was seized

21.61

(1)

(9) Form D

21.64

(1)

(10) Applications for early release by victims or other owners

21.67

(1)

(11) Section 301(3): victims of unlawful conduct

21.71

(1)

(12) Form E: Order for release under section 301(3)

21.72

(1)

(13) Section 301(4): Third party applications/other owners

21.73

(1)

(14) Objection to release under section 301(4) from the person from whom the cash was seized

21.74

(1)

(15) Form F: Order for release under section 301(4)

21.75

(1)

(16) Joinder

21.77

(1)

(17) Applications for the return of the cash: standard of proof

21.78

(1)

(18) Can officers agree to the release of cash?

21.79

(1)

(19) Transfer of proceedings

21.80

(1)

(20) Transfer: What test is to be applied?

21.81

(1)

E. Applications for Forfeiture of Detained Cash

(1) Form G

21.82

(1)

(2) Effect of lodging an application

21.88

(1)

(3) Forfeiture proceedings

21.89

(1)

F. The Hearings

21.90

(1)

(1) What type of directions may be ordered?

21.92

(1)

(2) The forfeiture hearing

21.94

(1)

(3) Procedure at hearings made on complaint

21.95

(1)

(4) Order of evidence and speeches

21.97

(1)

(5) Matters to be sworn under oath

21.99

(1)

G. Rules of Evidence

(1) Burden and standard of proof

21.100

(1)

(2) Are previous convictions admissible?

21.102

(1)

(3) Is there a need for Customs to demonstrate direct evidence of the unlawful conduct in question?

21.104

(1)

(4) Hearsay in civil cases

21.105

(1)

(5) May inferences be drawn?

21.108

(1)

(6) Lies told by the defendant

21.109

(1)

(7) Mass Spec expert reports

21.110

(1)

(8) Record of proceedings

21.112

(1)

(9) Form H: Order for forfeiture

21.113

(1)

(10) Public interest immunity

21.114

(1)

(11) Joint tenants

21.117

(1)

H. Costs

21.118

(1)

(1) May funds be released from the detained cash to fund continued detention and forfeiture applications?

21.121

(1)

(2) Compensation

21.122

(1)

(3) Application for compensation

21.128

(1)

(4) Appeals against forfeiture

21.129

(1)

(5) Can the 30-day period for the date of the appeal be extended?

21.130

(1)

(6) Funding the appeal

21.131

(1)

I. Searches and Seizure of Cash

21.132

(1)

(1) Cash on premises

21.133

(1)

(2) The minimum amount

21.134

(1)

(3) The definition of 'cash'

21.136

(1)

(4) Cash on the suspect

21.139

(1)

(5) 'Unlawful conduct'

21.141

(1)

(6) Safeguards for the new search powers

21.142

(1)

(7) Report on exercise of powers

21.147

(1)

(8) The Code of Practice

21.148

(1)

(9) Procedure at hearings

21.152

(1)

J. Compatibility of the New Forfeiture Provisions with the ECHR

21.153

(1)

22. Third Parties and Confiscation Law

A. Introduction

22.01

(1)

B. Restraint Orders

(1) Jurisdiction to bind third parties

22.02

(1)

(2) Obligations of third parties

22.04

(1)

(3) Rights of third parties

22.08

(1)

(4) Reasonable costs and expenses

22.09

(1)

(5) Restraint orders and the wife of the defendant

22.12

(1)

(6) Living expenses

22.14

(1)

(7) Restraint orders and limited companies

22.16

(1)

(8) The corporate veil

22.17

(1)

(9) Prosecutor does not have to give an undertaking in damages

22.24

(1)

(10) Unsecured third party creditors

22.26

(1)

(11) Use of assets

22.27

(1)

(12) What remedies are available to a person who denies the defendant has an interest in a restrained asset?

22.28

(1)

C. Confiscation Orders

22.29

(1)

D. Receivership Proceedings

22.32

(1)

(1) The right to be given notice of the proceedings

22.34

(1)

(2) The right to make representations

22.35

(1)

(3) What steps should be taken on behalf of the third party on receipt of an application to appoint an enforcement receiver?

22.37

(1)

(4) Seeking an adjournment

22.38

(1)

(5) Powers of the court and receiver in relation to third parties under POCA 22.40

(6) The role of the defendant

22.43

(1)

(7) The hearing

22.44

(1)

(8) The court's order

22.45

(1)

E. Specific Third Party Claims

(1) Wives and co-habitees

22.49

(1)

(2) The matrimonial home

22.54

(1)

(3) Re Norris and HM Customs y MCA

22.57

(1)

F. Property Adjustment Orders

22.72

(1)

(1) Property adjustment orders: does POCA oust the MCA?

22.77

(1)

(2) Matrimonial homes where the conditions set out in Re Norris and HM Customs and Excise v MCA do not apply

22.79

(1)

(3) Property should form part of the confiscation order

22.80

(1)

(4) Equitable interests in the matrimonial home

22.85

(1)

(5) Application of sums and third parties

22.87

(1)

(6) Banks

22.89

(1)

(7) The insolvent defendant: the position of the trustee in bankruptcy

22.95

(1)

(8) POCA and the insolvent defendant

22.97

(1)

G. Conclusion

22.99

(1)

23. Obtaining the Evidence

A. Introduction

23.01

(1)

B. Powers under the DTA 1994

(1) Production orders

23.03

(1)

(2) Conditions which have to be met

23.04

(1)

(3) Judicial discretion

23.06

(4) Overseas investigations

3.08

(20)

(5) Legal professional privilege

23.10

(1)

C. Procedure on Applications

23.11

(1)

(1) Complying with the order

23.13

(1)

D. Search Warrants

23.16

(1)

E. Variation and Discharge of Production Orders

23.19

(1)

F. Failure to Comply with Production Orders

23.22

(1)

G. Disclosure of Information held by Government Departments

23.23

(1)

(1) Procedure on applications

23.26

(1)

H. CJA Cases

23.27

(1)

I. Powers under POCA 2002

(1) Introduction

23.31

(1)

(2) Investigations

23.32

(1)

(3) Production orders

23.33

(1)

(4) Requirements for making an order

23.34

(1)

(5) Procedure on applications

23.37

(1)

(6) Who may apply for a production order?

23.38

(1)

(7) Search and seizure warrants

23.39

(1)

(8) Customer information orders

23.40

(1)

(9) Requirements for making orders

23.42

(1)

(10) Discharge and variation

23.44

(1)

(11) Offences

23.45

(1)

(12) Account monitoring orders

23.46

(1)

(13) Disclosure orders

23.49

(1)

(14) Statements made in response to orders

23.51

(1)

(15) Code of practice

23.52

(1)

24. Appeals

A. Introduction

24.01

(1)

(1) Appeals distinguished

24.02

(1)

(2) Transfer of powers from the High Court to the Crown Court

24.04

(1)

B. The Criminal Appeal (Confiscation, Restraint and Receivership) Rules 2003

24.05

(1)

C. Restraint Order Appeals: Practice and Procedure

(1) Appeals to the Court of Appeal from restraint orders under the DTA and CJA

24.06

(1)

(2) Procedure for appeals from the High Court under the DTA and CJA

24.07

(1)

(3) Appeals to the Court of Appeal from restraint orders under POCA

24.13

(1)

(4) Leave

24.19

(1)

(5) Hearing the appeal

24.23

(1)

(6) The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003

24.26

(1)

(7) Restraint orders under POCA: appeal to the House of Lords

24.27

(1)

D. Receivership Order Appeals: Practice and Procedure

(1) Appeals to the Court of Appeal in receivership proceedings under the DTA and POCA

24.29

(1)

(2) Appeals to the Court of Appeal in receivership proceedings under POLA

24.30

(1)

(3) Leave

24.36

(1)

(4) Hearing the appeal

24.40

(1)

(5) The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003

24.43

(1)

(6) The powers of the Court of Appeal on receipt of an appeal against a receivership order

24.44

(1)

(7) Appeal to House of Lords

24.45

(1)

(8) Appeals by financial investigators under POCA

24.47

(1)

E. Confiscation Order Appeals: Practice and Procedure

(1) Appeals in confiscation order cases

24.50

(1)

(2) Procedure for confiscation order appeals under the DTA and CJA

24.53

(1)

(3) A right of appeal against the confiscation order in all cases

24.54

(1)

(4) Appeals involving the judge's discretion

24.56

(1)

(5) Confiscation orders: the Crown Court 'slip rule'

24.57

(1)

(6) Appeals in confiscation order cases to the Criminal Cases Review Commission

24.58

(1)

(7) Confiscation appeals under POCA

24.59

(1)

(8) Leave

24.61

(1)

(9) Appeal by the prosecutor or the Director of the ARA

24.62

(1)

(10) Appeal by the prosecutor or the Director of the ARA: the Court of Appeal's powers

24.65

(1)

(11) The steps the court must take

24.68

(1)

(12) The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003

24.74

(1)

(13) Appeal by the prosecutor or the Director of the ARA: appeal to the House of Lords by either the defendant or the prosecutor

24.75

(1)

(14) Powers of the House of Lords in such circumstances

24.78

(1)

(15) Where the Crown Court proceeds afresh

24.79

(1)

F The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003

(1) Practice and procedure: appeals to the Court of Appeal

24.82

(1)

(2) Initiating procedure

24.83

(1)

(3) Disposal of groundless applications for leave to appeal

24.85

(1)

(4) Preparation of case for hearing

24.87

(1)

(5) Right of defendant to be present

24.89

(1)

(6) Rules of evidence in the Court of Appeal

24.90

(1)

(7) General provisions

24.93

(1)

(8) References to the European Court of Justice

24.94

(1)

G. Appeals against Forfeiture Orders

(1) Forfeiture appeals under POCA from the Magistrates' Court

24.95

(1)

(2) Procedure on forfeiture appeals under POCA

24.97

(1)

(3) Forfeiture appeals under the DTA from the Magistrates' Court

24.100

(1)

(4) Appeal from the Magistrates' Court to the High Court by way of case stated

24.103

(1)

H. Appeals under Part 6 of POLA: Revenue Functions

(1) The Criminal Cases Review Commission

24.107

(1)

I. Appeals against Findings of Contempt of Court

(1) Appeals in cases of findings of contempt of court by the High Court

24.109

(1)

(2) Appeals in cases of findings of contempt of court by the Crown Court

24.112

(1)

25. The International Element

A. Introduction

25.01

(1)

(1) Designated countries and territories

25.03

(1)

(2) Appropriate authorities

25.04

(1)

B. Obtaining Restraint Orders in the United Kingdom on behalf of Designated Countries

25.05

(1)

(1) Drugs cases

25.06

(1)

(2) Meaning of 'proceedings have been instituted'

25.07

(1)

(3) Meaning of 'proceedings have not been concluded'

25.08

(1)

(4) Definition of 'external confiscation order'

25.09

(1)

(5) Cases involving other criminal conduct

25.13

(1)

C. Procedure on Applications for Restraint Orders

25.18

(1)

(1) The letter of request

25.19

(1)

(2) Evidence in support

25.21

(1)

(3) Ancillary orders

25.26

(1)

(4) Applications for the variation and discharge of orders

25.27

(1)

D. Enforcement of External Confiscation Orders

25.28

(1)

(1) Registration of the order

25.29

(1)

(2) Procedure for registration

25.35

(1)

(3) Evidence in support of the application for registration

25.37

(1)

(4) The application

25.38

(1)

(5) Applications to vary or set aside registration

25.40

(1)

(6) Register of orders

25.41

(1)

(7) Effect of registration

25.42

(1)

(8) Variation, satisfaction and discharge of registered order

25.43

(1)

(9) Application of the proceeds of realisation

25.44

(1)

E. Enforcement of UK Confiscation Orders Overseas

25.45

(1)

F. Reciprocal Enforcement with Scotland and Northern Ireland

25.48

(1)

(1) Scotland

25.49

(1)

(2) Northern Ireland

25.50

(1)

G. Co-operation under POCA 2002

25.51

(1)

26. Money Laundering

A. Introduction

26.01

(1)

(1) What is money laundering?

26.05

(1)

(2) Why criminalise money laundering?

26.06

(1)

(3) How is money laundered?

26.07

(1)

B. Money Laundering under the Proceeds of Crime Act 2002

(1) Introduction

26.11

(1)

(2) Inchoate offences

26.13

(1)

(3) The first money laundering offence: concealing etc

26.14

(1)

(4) 'Criminal property'

26.17

(1)

(5) 'Criminal conduct'

26.18

(1)

(6) Defences to section 327(1)

26.20

(1)

(7) The second money laundering offence: arrangements

26.22

(1)

(8) Defences to section 328(1)

26.24

(1)

(9) The third money laundering offence: acquisition, use and possession

26.26

(1)

(10) Defences to section 329(1)

26.27

(1)

(11) Maximum penalty

26.31

(1)

(12) Disclosure under section 338

26.32

(1)

(13) Disclosure to a nominated officer

26.36

(1)

(14) Appropriate consent

26.38

(1)

(15) 'Notice period'

26.42

(1)

(16) 'Moratorium period'

26.43

(1)

(17) Consent from a nominated officer

26.45

(1)

(18) 'The prohibited act'

26.47

(1)

(19) Protected disclosures

26.48

(1)

(20) Form and manner of disclosures

26.50

(1)

(21) Mode of trial

26.52

(1)

C. Money Laundering Offences under the Drug Trafficking Act 1994 and Criminal Justice Act 1988

(1) Introduction: the proceeds of drug trafficking

26.53

(1)

(2) Concealing or transferring the proceeds of drug trafficking

26.55

(1)

(3) Assisting another person to retain the benefit of drug trafficking

26.58

(1)

(4) Disclosure of transactions to a constable

26.61

(1)

(5) Drafting the indictment

26.62

(1)

(6) Defences

26.64

(1)

(7) Disclosures by persons in employment

26.66

(1)

(8) Acquisition, possession, or use of the procceeds of drug trafficking

26.67

(1)

(9) Defences: adequate consideration

26.68

(1)

(10) Other defences

26.71

(1)

(11) Laundering the proceeds of other crimes under the Criminal Justice Act

26.72

(1)

(12) Meaning of criminal conduct

26.73

(1)

(13) Sentencing for money laundering offences

26.74

(1)

(14) Mode of trial decisions

26.79

(1)

(15) Money laundering regulations

26.80

(1)

27. Disclosure of Suspicious Transactions

A. Introduction

27.01

(1)

B. The EC Money-Laundering Directive

27.03

(1)

(1) UK legislation to implement the directive

27.06

(1)

C. Disclosure of Suspicious Transactions under POCA

(1) Failure to disclose: regulated sector

27.07

(1)

(2) Businesses in the regulated sector

27.08

(1)

(3) To whom should the disclosure be made and what should be disclosed?

27.11

(1)

(4) Defences to failing to disclose in the regulated sector

27.12

(1)

(5) What tests should the court apply?

27.14

(1)

(6) Legal privilege

27.16

(1)

(7) Failure to disclose: nominated officers in the regulated sector

27.17

(1)

(8) Defence available

27.19

(1)

(9) Considerations for the court

27.20

(1)

(10) Failure to disclose: other nominated officers

27.21

(1)

(11) Defence available

27.22

(1)

(12) The offence of tipping off under POCA

27.23

(1)

(13) Defences available

27.25

(1)

(14) Maximum penalty under sections 330, 331, 332, and 333

27.27

(1)

(15) Consent

27.28

(1)

(16) Protected and authorised disclosures

27.29

(1)

(17) Mode of trial decisions

27.30

(1)

D. Disclosure of Suspicious Transactions under the DTA

27.31

(1)

(1) Failure to disclose knowledge or suspicion of drug money laundering

27.32

(1)

(2) Legal professional privilege

27.34

(1)

(3) Defences

27.36

(1)

(4) Tipping off

27.37

(1)

(5) Defences

27.40

(1)

(6) Tipping off under the CJA 1988

27.41

(1)

(7) Penalties

27.46

(1)

E. The Money Laundering Regulations 1993

27.47

(1)

(1) Business relationships

27.49

(1)

(2) One-off transactions

27.51

(1)

(3) Relevant financial business

27.52

(1)

(4) Obligations imposed by the regulations

27.54

(1)

(5) Identification procedures

27.55

(1)

(6) Record keeping procedures

27.60

(1)

(7) Internal reporting procedures

27.62

(1)

(8) Training

27.64

(1)

(9) Supervisory authorities

27.66

(1)

(10) Offences and penalties

27.67

(1)

(11) Supervisory and regulatory guidance

27.68

(1)

(12) Defences

27.69

(1)

(13) To whom should transactions be reported?

27.70

(1)

F. The Money Laundering Regulations 2001

27.71

(1)

(1) 'Money service operator'

27.73

(1)

(2) Review and appeals

27.75

(1)

28. Costs and Compensation

A. Introduction

28.01

(1)

B. Costs and Compensation Distinguished

28.03

(1)

C. Costs

28.04

(1)

(1) Court's discretion and circumstances to be taken into account when exercising its discretion as to costs

28.06

(1)

(2) Basis of assessment

28.07

(1)

(3) Factors to be taken into account in deciding the amount of costs

28.09

(1)

(4) Interim costs orders

28.10

(1)

(5) The powers of the Magistrates' Court to order costs

28.13

(1)

(6) The acquitted defendant and costs

28.19

(1)

(7) Orders for the payment of costs in confiscation order cases

28.20

(1)

(8) Confiscation orders: prosecution costs

28.21

(1)

(9) Costs of receivers

28.22

(1)

(10) Costs of the receiver and the acquitted defendant

28.25

(1)

(11) Receiver's and their indemnities

28.33

(1)

(12) Release of restrained funds to cover legal expenses under the DTA and CJA

28.34

(1)

(13) Release of restrained funds to cover legal expenses under POCA

28.42

(1)

D. Compensation

(1) Compensation for the acquitted defendant under the DTA and CJA

28.48

(1)

(2) Other conditions

28.50

(1)

(3) How much compensation and by whom is it paid?

28.51

(1)

(4) Procedure on applications

28.52

(1)

(5) Compensation for the acquitted defendant under POCA 2002

28.54

(1)

(6) When a confiscation order is varied or discharged under POCA

28.59

(1)

(7) Other powers to order compensation under POCA

28.61

(1)

(8) Compensation in relation to interim receiving orders

28.64

(1)

(9) Compensation for recovery of cash in summary proceedings

28.68

Appendices

Appendix 1: Restraint Order

595

(6)

Appendix 2: Management Receivership Order

601

(4)

Appendix 3: Enforcement Receivership Order

605

(4)

Appendix 4: Countries Designated under the Drug Trafficking Act 1994 and Part VI of the Criminal Justice Act 1998

609

(2)

Appendix 5: Letter of Agreement between Prosecutor and Receiver

611

(4)

Appendix 6: Variation of Restraint Order

615

(2)

Appendix 7: Application Notice by Defendant seeking Variation to Restraint Order

617

(4)

Appendix 8: Application Notice by Defendant Seeking a Certificate of Inadequacy

621

(4)

Appendix 9: Certificate of Inadequacy

625

(2)

Appendix 10: Claim Form (CPR Part 8)

627

(2)

Appendix 11: Extract from the Practice Direction on POCA 2002 Parts 5 and 8: Civil Recovery-Section III

629

(2)

Appendix 12: Extract from the Practice Direction on POCA 2002 Parts 5 and 8: Civil Recovery-Section IV

631

(4)

Appendix 13: Schedule 6 of POCA 2002: Powers of an Interim Receiver

635

(2)

Appendix 14: Draft Restraint, Disclosure and Repatriation Order under POLA

637

(6)

Appendix 15: Interim Receiving Order under POCA

643

(6)

Appendix 16: Useful Websites on POCA 2002

649

(4)

Index

653

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The Proceeds of Crime The Law and Practice of Restraint, Confiscation, and Forfeiture

The Proceeds of Crime The Law and Practice of Restraint, Confiscation, and Forfeiture

9780199264773

0199264775

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Table of Contents

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Amazon no longer offers textbook rentals. We do!

The Proceeds of Crime The Law and Practice of Restraint, Confiscation, and Forfeiture

The Proceeds of Crime The Law and Practice of Restraint, Confiscation, and Forfeiture

9780199264773

0199264775

Summary

Author Biography

Table of Contents

Supplemental Materials

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