The powers conferred by the Proceeds of Crime Act 2002 (POCA) upon enforcement agencies are extensive and are increasingly being used to challenge illicit finance. The various related regimes cast a wide net and the complex nature of proceedings means that individuals and businesses can be caught up in litigation that compels a suspect to account for their financial history.
We act for businesses and individuals who require advice in dealing with POCA investigations and proceedings when enforcement authorities seek to target capital and assets.
Cash seizure, detention and forfeiture is regularly used in the Magistrates’ Court. The first a suspect may become aware that they are a person of interest is when an order is made restricting them access or control of an asset. We advise clients on resisting these incursions. A brief outline of the main powers granted to enforcement agencies are outlined below together with ways we can assist.
POCA 2002 provides authorities with wide-ranging powers that enable the seizure and forfeiture of cash and valuable assets from individuals and organisations.
Although the rules between the different statutory powers differ, seizure, whether it be of cash or a ‘listed asset’, and any subsequent application for forfeiture is justified on the grounds of a reasonable suspicion that the assets in question relate to criminal behaviour. Significant asset recovery operates without anyone having been found guilty of a criminal offence, or even prosecuted for an offence. The civil standard of proof applies in determining whether the suspicion of unlawful conduct is made out. Unlike other proceedings, even if successful in resisting an application for forfeiture, a recovery of costs incurred in responding to the application is problematic. Anyone subject to asset seizure should seek legal assistance.
RFB can offer expert advice, assistance and representation in challenging seizures, and applications for forfeiture. Such advice will include:
· Challenging applications for continued detention and forfeiture orders
· Negotiating with the applicant authority for settlement
· Advising third parties who hold an interest in assets seized
· Appeals of Forfeiture Orders
Unexplained Wealth Orders (UWOs)
These require people or organisations to explain how they obtained property. The High Court will issue such an order if satisfied the person or organisation holds the property, its value is £50,000 or more, and either the person or organisation’s known sources of income would not be enough to obtain the property, or the property was obtained through unlawful conduct. An application for a UWO is often accompanied by an application for an Interim Freezing Order (IFO) which prohibits asset disposal. Like asset forfeiture orders, UWO’s operate without the need for criminal prosecution, conviction, or civil judgement. Those liable to UWO’s are either:
· A politically exposed person (PEP) who is not a citizen of the EEA
· A person suspected of serious crime
· Someone connected to a person suspected of serious crime
The UWO requires a person or organisation to provide a statement explaining the nature and extent of their interest in the property. This will include details as to how the property was obtained, its costs and any other matters specified in the order. The recipient of such an order should seek legal advice and exercise care in responding to it.
RFB offers expert advice and assistance with:
· Legality of the Application
· Potential challenges to the IFO
· Response to the UWO, including the collation of evidence in support.
· Advice as to third party rights in respect of the asset concerned
· Defending application for civil recovery of the asset.
Such orders are sought at an early stage of investigation by a law enforcement agency to preserve assets that may later become the subject of confiscation proceedings. It is a Crown Court order which has the effect of prohibiting a specified person from dealing with their assets in this country or abroad. Such an order will only be made if there are reasonable grounds to suspect that the alleged offender has benefitted from his criminal conduct. These orders can remain in force for a considerable period. As a result, they can cause considerable hardship, whether personally or commercially, to the subject and interested 3rd parties.
RFB offers expert advice and assistance in:
· Challenging the lawfulness of such an order
· Applications to discharge or vary the terms of the Order
· Ensuring order compliance
· Representation throughout criminal process, including any confiscation proceedings