The Seizure of Your Cash
POCA 2002 Cash Seizure
Seizure is the process of ownership of funds being taken from individuals over to the state. These cases are civil proceedings and take place in the magistrates' court. The authorities who are requesting seizure have to prove their case on a balance of probabilities. This means they must show that their case is ‘ more probable than not', or ‘ more likely than the other side's position'. If the Court find in favour of the prosecution, POCA solicitors can appeal on your behalf to the Crown, and in a Crown Court appeal the whole case will be heard again from the beginning.
What must be proved for the cash to be seized?
Cash may be seized if it is proved that a customs officer, police officer or a financial investigator has reasonable grounds to suspect that it is either ‘ recoverable property' or it is ‘ intended for use in unlawful conduct'.
So what do these terms mean? Recoverable property is property obtained through unlawful conduct. This means doing anything illegal, including in foreign countries so long as that conduct is unlawful both in the UK and that foreign country. So property that could be subject to a claim under the POCA 2002 cash seizure rules could include, for example, money earned from drug dealing, prostitution, or fraud.
The prosecution does not have to show that the unlawful conduct was of one specific type if they can prove that it was one of a number of kinds, each of which would have been unlawful. However, even though there is no need to prove that someone committed a particular offence, the law suggests that it is necessary to specify the particular type of criminality relied upon. The minimum amount that the authorities can seize under this law is £1000.
The term ‘ cash seizure' is slightly misleading because this area of the law also applies to other easily movable assets (or financial instruments) such as bearer bonds and shares, bankers drafts, postal orders and cheques.
The money seized must be paid into an interest-bearing account at the first reasonable opportunity. Note that often money is submitted for mass spectrometer analysis to see if it has an unusually high level of drug contamination. In this situation, it may not be paid into an account until the testing has taken place.
Time limits to be aware of
Following seizure of the cash an application must be made to the Magistrates Court within 48 hours (excluding holidays and weekends) to detain the cash for longer to allow for further enquiries.
The magistrates may order that the cash be further detained for an initial maximum period of 3months. This period may be further extended by a maximum of 3 months per application.
The total maximum allowed time for the case to happen from the initial detention of money is 2 years.
Under the POCA 2002 cash seizure rules, each time the authorities apply for extra time to detain the cash, they have to persuade the court that there are reasonable grounds to suspect that the cash has been obtained unlawfully. The only other way that they can successfully apply for the continued detention of the cash is if they can convince the court that the property otherwise is intended to be used in unlawful conduct (i.e. as part of criminal financial activity), and that the delay is necessary to provide them time to investigate its origin or the criminal activity it was intended to finance.
In either scenario, the court may also extend the period if criminal proceedings are still being considered as a possibility or ongoing. It is worth seeking free legal advice from POCA solicitors to assess the impact of an ongoing investigation on such applications. The courts will often take a risk-averse approach and order the continued retention of the cash where an investigation is ongoing.
Early Release of Funds
Applications for early release of the cash may be made either by the person from whom the cash was seized or by the owners of cash. This includes someone who claims that the cash was stolen from them by the person it was seized from. It is important to remember that the person who is applying for the early release will need to prove that the conditions for further detention do not apply.
Final Hearing/ Strategy
If the court is satisfied on a balance of probabilities that the money is either recoverable property or intended for use in criminal conduct it will order that the money be forfeited.
Ultimately the court must be persuaded, on the balance of probabilities, that the cash in question is legitimate. POCA solicitors must work closely with their client to get the complete story as to the origins of the cash and thought must be given to any evidence which demonstrates this explanation. For example, it may be that POCA solicitors can speak to witnesses or perform an analysis of bank statements. POCA solicitors must also closely look at the basis upon which the prosecution make their application and assess whether or not there are weaknesses in their assertions.
In civil litigation costs normally follow the event. This means that the winner in a case should get his or her costs returned.
However, this is often, perhaps unfairly, not applied in most cases brought under the POCA 2002 cash seizure legislation. The courts have recently decided that since there is a public interest in such proceedings being brought (if they are brought on reasonable grounds and in good faith) the authorities should not be discouraged from making seizure applications through fear of having to pay costs. This means that costs are not usually awarded to the individual who successfully defends the case.
However, if the court is of the view that the application should never have been brought or continued with after explanations about the origin of the cash had been given, it will award costs against the applicant. The prospect of recovering costs is something POCA solicitors must always be aware of.
If the court is satisfied that the person from whom the cash was seized or the owner has suffered a loss and the circumstances are ‘ exceptional', it may award that person compensation. It should be added that this type of compensation award is very rare.
Senior judges and the Law Commission have already expressed concern about the way that this part of the law is being used in modern times.
Being caught up in an investigation for fraud by misrepresentation can feel stressful and confusing. The fraud act offences have a wide scope and can affect ordinary, law abiding people. That particularly applies to section 2.
Send us a confidential message
We'll get back to you as soon as possible. We are happy to speak to you if you have a query, and either have a free consultation on the phone or in person if necessary.