JULY 2013
PART 1
INTRODUCTION
9A.2 The Proceeds of Crime Act 2002
The Proceeds of Crime Act 2002 (PoCA02) consolidates and strengthens the powers for the confiscation of the financial benefit that an offender has obtained from his/her criminal activity.
The Act covers a wide range of matters relevant to UK law on the powers of investigation and recovery of proceeds of crime, see paragraph 9A.3.
PoCA02 provides the following processes:
(a) Confiscation proceedings in the crown court.
a. Restraint orders – the defendant cannot use or move specified property without agreement by the court. A restraint order effectively freezes the property to protect it during a criminal investigation (usually followed by a confiscation hearing) see Part 2.
b. Confiscation orders – the defendant must pay an amount set by the court based on his/her benefit from crime following conviction, see Part 3.
(b) Civil recovery in the High Court, see Part 4.
a. Freezing orders – prohibits any person to whom the order applies from dealing in any way with specified property without agreement by the court (see paragraphs 9A.104 - 106).
b. Interim receiving orders – appoints an interim receiver to take custody of specified property (see paragraphs 9A.107 - 109).
c. Civil recovery orders – appoints a trustee to realise specified property which is believed to be the proceeds of crime, without a conviction (see paragraphs 9A.115 - 117).
(c) Forfeiture in the magistrates’ court, see Part 5.
a. Cash seizure – cash may be seized on reasonable suspicion that the cash represents the benefit from unlawful conduct or is intended for use in unlawful conduct (see paragraphs 9A.125 - 128).
b. Cash forfeiture – where the court is satisfied that cash seized is recoverable or is intended by any person for use in unlawful conduct it will be forfeited (i.e. surrendered) to the authority who seized it (see paragraphs 9A.129 - 130).
(d) Tax assessments (Revenue function) – power by The Serious Organised Crime Agency (SOCA) to raise tax assessments and to collect specific or general taxes where a person is suspected of having income, gains or profits from the proceeds of crime, see Part 6.
Realisable property is any free property (property which is not subject to an order of deprivation or forfeiture) [note 1] held by the defendant, and any free property held by the recipient of a tainted gift (see Part 3, paragraph 9A.75) [note 2].
Property is broadly defined in PoCA02 to cover property wherever held and it includes money, all forms of real or personal property, things in action and other intangible or incorporeal property [note 3]. As the definition covers property ‘wherever held’ this would include assets held in foreign jurisdictions, see paragraph 9A.6.
Where realisable property is held abroad the prosecuting authority may send a request for assistance to another country to prohibit any person from dealing with realisable property, and/or to sell realisable property and apply the proceeds in accordance with the law of that country [note 4].
A number of different agencies, including SOCA, the Police and HM Revenue and Customs (HMRC) have power to bring proceedings to confiscate or recover property that has been obtained through unlawful activity (see paragraph 9A.87). SOCA has responsibility for overseeing this process.
SOCA uses PoCA02 to protect assets during the course of a criminal investigation and to enforce a convicted individual to forfeit the proceeds of his/her crime. SOCA provides assistance to other enforcement authorities, taking on cases for civil recovery or tax action, on a referral basis from HMRC, the Police and law enforcement authorities in accordance with agreed criteria. SOCA also has the power to carry out general tax recovery functions in relation to a company or person if there are reasonable grounds to suspect that income arising or gain accruing to a company or person is a result of the company’s or person’s criminal conduct, or as a result of another’s criminal conduct [note 5], see Part 6.
More information on the work of SOCA can be found on its website, at www.soca.gov.uk. SOCA is due to become part of a new National Crime Agency for the UK in late 2013.
9A.9 Time for asset recovery process through Court
Asset recovery processes must be taken through court and so take time. Confiscation cases take an average of two years, from the start of a criminal investigation to enforcement of the confiscation order. For larger more complex cases, like those undertaken by SOCA, this can be much longer. Civil recovery and tax cases can take several years.
9A.10 The Joint Asset Recovery Database
SOCA has the responsibility for maintaining a Joint Asset Recovery Database which records all restraint, confiscation, cash seizure and civil recovery orders made throughout the United Kingdom, together with brief details of the assets taken into account in making such orders. Most law enforcement agencies and HM Courts and Tribunals Service have access to it.
9A.11 Contact details for SOCA
SOCA can be contacted at:
Serious Organised Crime Agency
PO Box 8000
LONDON
SE11 5EN
Tel: 0370 496 7622
9A.12 Contact with enforcement authority
The official receiver should contact the relevant enforcement authority (whether SOCA, the Police, HMRC or another) in any case where he/she has reason to believe that an order has been made or is about to be made under PoCA02. For example, in cases where a criminal conviction has already been obtained against a company or a bankrupt, in cases where an interviewee has indicated that proceedings under PoCA02 are pending, or where the official receiver has reason to believe that this might be the case from other information available.
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