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Cash forfeiture under the Proceeds of Crime Act 2002 ('POCA') is overlooked by many criminal lawyers as a civil after-thought, a bit-player in perhaps a main case. Often extensions to detention of cash deadlines are un-opposed. There is often little thought into how the civil cash forfeiture process might impact upon criminal proceedings or vice-a-versa.
At Rahman Ravelli our policy is to use our expertise in POCA to the full.
Whether the cash in question is part of a bigger criminal case, or whether it is a stand-alone seizure without any criminal proceedings there are tactical considerations that should apply early on.
Here we outline just three areas that, all of those on the wrong end of a detention notice, should be aware of:
Regrettably many defendants are not made aware of the rule that even if they are successful they may not recover their costs because of the rule in R (Perinpanathan) v City of Westminster Magistrates’ Court  1 WLR 1508. In fact there are certain early measures that can be taken to avoid that outcome and recover your full costs. If that happens then the litigation becomes a costs gamble for the State too, as long as the costs ground-work is well laid. This aspect alone can make a huge difference in the Crown's attitude to forfeiting your cash. See Kier Group v OFT  CAT 33.
The case of Angus v UKBA  Lloyd's Rep. F.C. 329 turned the tables on cash forfeiture against the Crown – since then, generally speaking, the Crown has to indicate what background offending is said to lay behind the cash, (s242(2)(b)). Officers and Financial Investigators still routinely fail to nail their colours to the mast – or do so late in the proceedings – giving an experienced POCA lawyer opportunity to submit there is no proof, there is only speculation and that the application is being made not because it should be made but only because it can be made.
Many Financial Investigators have been trying to ‘get round’ the Angus ‘problem’ by pleading tax evasion as the background crime. There is competing case-law in this developing area but it can be argued that any proceeds from income not declared is not 'obtained' from criminal conduct as required under the Act (s242). Alternatively, only such portion of the sum seized that would be paid in tax can be forfeited; there is case law for both propositions – something often missed, especially by those making the application for forfeiture.
We at Rahman Ravelli have been at the cutting edge of challenging all sorts of POCA cases and POCA itself since its inception. We know how clients feel when they have their cash taken away from them and told it is because they are criminals – without the fair fight of a Crown Court trial to prove their innocence and get their money back. Only a firm with the expert mix of human rights, financial crime and business crime and a wealth of experience in POCA cases can properly rise to the challenge of a difficult cash forfeiture case.
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