Blackstone's Guide To The Proceeds Of Crime Act 2002

by Rees, Edward; Fisher, Richard

• ISBN13: 9780199277650
• ISBN10: 0199277656
• Edition: 2nd
• Format: Paperback
• Copyright: 2005-03-24
• Publisher: Blackstone Press

Summary

The Blackstone's Guide Series delivers concise and accessible books covering the latest legislation changes and amendments. Published within weeks of an Act, they offer expert commentary by leading names on the effects, extent and scope of the legislation, plus a full copy of the Act itself.They offer a cost-effective solution to key information needs and are the perfect companion for any practitioner needing to get up to speed with the latest changes. The Proceeds of Crime Act 2002 has had a far-reaching impact on criminal procedure. The Act comprehensively addresses the detection and recovery of criminal property in all aspects under the overall supervision and control of a new body, the Assets Recovery Agency. Confiscation hearings andrestraint orders are fast becoming part of the routine of a typical criminal practice.This second edition of the successful Guide provides a detailed commentary on the Proceeds of Crime Act 2002, whilst also covering all of the developments since the Act came into force in Spring 2003 and referring to subsequent related legislation. It contains the new set of Crown Court Rulesgoverning procedures, forms, and timetables, and the new Code of Practice dealing with search, seizure warrants and production and disclosure orders. Also included is updated information on the money-laundering provisions, and a developed consideration of the workings and progress of the AssetsRecovery Agency since its implementation. The user-friendliness of the Guide has been further improved with the addition of helpful court procedure guides at the end of each chapter. Practitioners will find this revised Guide an invaluable reference source and it is an essential purchase for every lawyer, both civil and criminal.

Author Biography

Edward Rees QC is a specialist criminal law barrister at Doughty Street Chambers with expertise in serious fraud, confiscation cases and trials with civil libertarian implications. He is principal speaker on behalf of the Criminal Bar Association on criminal confiscation and Honorary Fellow in Criminal Process at Kent University. Richard Fisher is a barrister at Doughty Street Chambers specialising in Criminal Defence.

Table of Contents

Preface to the Second Edition	xv
Table of Cases	xvii
Tables of European and International Cases	xxiii
Table of Primary Legislation	xxv
Tables of Secondary Legislation	xxxiii
Table of Conventions	xxxv
List of Abbreviations	xxxvii
Introduction
Purpose of the Legislation	1	(9)
The Statutory Agenda	1	(9)
The New Law	10	(10)
The Assets Recovery Agency	10	(4)
Money Laundering	14	(1)
`One-Stop Shopping'	15	(1)
Criminal Confiscation	16	(1)
Civil Recovery, Cash Seizure, and Taxation	17	(3)
Scheme of the Commentary	20
The Assets Recovery Agency
Overview	1	(16)
Structure of the Agency	1	(3)
Functions of the Agency	4	(1)
Director's Guidance	5	(5)
Revenue Functions	10	(5)
Aims and Objectives of the Asset Recovery Strategy	15	(2)
The Director's Role and Functions	17	(6)
Appointment and Terms	17	(1)
Training and Accreditation of Financial Investigators	18	(1)
Investigative Tools	19	(1)
Confiscation Orders and Enforcement	20	(3)
Progress of the ARA Since Implementation	23
Asset Recovery Updates	23	(3)
ARA Annual Report	26	(3)
ARA Business Plan 2004-5	29
Criminal Confiscation
Overview	1	(15)
Previous Legislation	1	(4)
Principal Changes	5	(1)
The Human Rights Act	6	(10)
The Process---A Summary	16	(7)
Summary	16	(6)
The Order of Events	22	(1)
When Does the Act Apply?	23	(3)
The Crown Court	23	(2)
Magistrates' Courts	25	(1)
Mandatory Enquiry	26	(4)
Prosecution Application	26	(1)
Abuse of Process	27	(3)
Evidence and Proof	30	(22)
The Burden and Standard of Proof	30	(4)
Sources of Proof	34	(1)
Trial Evidence	35	(2)
Prosecution Statements of Information	37	(4)
Defence Responses	41	(3)
Provision of Information by Defendant	44	(2)
Evidence in the POCA Hearing	46	(5)
The Role of the Assumptions	51	(1)
Stage One of the Process: Determining `Criminal Lifestyle'	52	(3)
The Meaning of `Criminal Lifestyle'	52	(3)
Stage Two: Has the Defendant Benefited from Criminal Conduct?	55	(30)
The Meaning of Criminal Conduct	55	(2)
Particular Criminal Conduct	57	(2)
General Criminal Conduct	59	(1)
The Meaning of Benefit	60	(9)
The Meaning of Property	69	(2)
Obtaining a Pecuniary Advantage	71	(6)
`Obtained as a Result of or in Connection with Criminal Conduct'	77	(8)
The Assumptions	85	(27)
The First Assumption---Transferred Property	86	(2)
The Second Assumption---Property Held by the Defendant after Conviction	88	(6)
The Third Assumption---Expenditure	94	(7)
The Fourth Assumption---Property Free of Other Interests	101	(1)
Defeating the Assumptions	102	(10)
Stage Three: Determining the Recoverable Amount	112	(24)
General	112	(3)
Taking Account of All of the Criminal Conduct	115	(2)
The Value of the Benefit	117	(13)
Joint Benefit	130	(3)
Proceedings by a Victim	133	(2)
Recovery, Forfeiture, and Previous Confiscation Orders	135	(1)
Stage Four: Determining the Available Amount	136	(45)
General	136	(7)
Assets not Proceeds	143	(4)
Burden of Proof	147	(8)
Priority Obligations	155	(3)
Tainted Gifts	158	(1)
The Meaning of `Tainted Gift'	159	(4)
The Value of a Tainted Gift	163	(3)
The Value of the Available Amount	166	(2)
Third Party Interests	168	(5)
The Matrimonial Home	173	(4)
Third Party Representations	177	(4)
Confiscation Orders and Sentence	181	(10)
General Relationship with Sentence	181	(5)
Relationship with Other Orders	186	(3)
Relationship with Compensation Orders	189	(1)
Costs	190	(1)
Postponement	191	(22)
Postponement and Sentence	191	(6)
Powers of Postponement	197	(7)
Exceptional Circumstances	204	(6)
Common Law Adjournments	210	(2)
Postponement on Appeal	212	(1)
The Making of the Order	213	(3)
Fixed Amount	213	(1)
Time for Payment	214	(2)
Enforcement	216	(18)
The Enforcement Authority	216	(2)
Default in Payment	218	(9)
Enforcement Receivers	227	(2)
Director's Receivers	229	(1)
Sums Realized by Receivers	230	(2)
Seized Money	232	(1)
Enforcement Abroad	233	(1)
Reconsideration	234	(13)
General	234	(3)
Prosecution Application	237	(4)
Inadequacy of Available Amount	241	(4)
Discharge of Small or Inadequate Amounts	245	(2)
Absconding Defendants	247	(7)
Convicted Defendants	247	(4)
Unconvicted Defendants	251	(3)
Appeals	254	(7)
Court of Appeal---by the Defendant	254	(3)
Court of Appeal---by the Prosecution or Director	257	(3)
House of Lords	260	(1)
Compensation	261
Investigations into Criminal Proceeds
Overview	1	(12)
Ambit of the Powers	1	(3)
The Investigatory Powers	4	(2)
Legal Professional Privilege	6	(5)
Other Exclusions and Provisions	11	(2)
Production Orders	13	(11)
Introduction	13	(3)
Applying for the Order	16	(5)
Breaching an Order	21	(1)
Entry to Premises and Access to Materials	22	(2)
Search and Seizure Warrants	24	(15)
Introduction	24	(2)
Applying for the Warrant	26	(6)
Additional Provisions and Executions of the Warrant---Confiscation and Money Laundering Investigations	32	(4)
Additional Provisions and Execution of the Warrant---Civil Recovery Investigations	36	(2)
Execution of the Warrant---Extent and Consequences	38	(1)
Disclosure Orders	39	(10)
Introduction	39	(1)
Applying for the Order	40	(2)
Effect of the Order	42	(3)
Use of a Disclosure Order	45	(3)
Penalties for Failure to Comply	48	(1)
Customer Information Orders	49	(9)
Introduction	49	(4)
Applying for the Order	53	(3)
Non-compliance Offences	56	(2)
Account Monitoring Orders	58	(6)
Introduction	58	(2)
Applying for the Order	60	(4)
Code of Practice Governing the Investigation Powers	64	(6)
Overseas Evidence	70	(3)
Principles and Application	70	(2)
Process after Grant	72	(1)
Prejudicing an Investigation	73
Elements of the Offence	73	(1)
Avoiding Liability	74	(1)
Legal Profession	75	(4)
Penalties	79
Restraint Proceedings
Overview	1	(6)
Introduction	1	(6)
Conditions for Exercise of Powers	7	(8)
Crown Court Rules	7	(2)
Application Before Charge	9	(4)
Application Following Charge	13	(1)
Application Following Conviction	14	(1)
Effects of a Restraint Order	15	(7)
Definitions	22	(2)
Realizable Property	22	(1)
Holding and Interests in Property	23	(1)
Application, Variation, and Discharge	24	(9)
Scope of Applicants	24	(1)
Appeal	25	(1)
Evidence	26	(6)
Variation and Discharge	32	(1)
Appointment of Management Receivers	33	(12)
Scope	33	(2)
Appointment and Powers	35	(4)
Third Parties	39	(5)
Discharge of Management Receivers	44	(1)
Restraint Proceedings and Seized Money	45	(1)
Scope and Extent	45	(1)
Principles to be Followed in Exercise of Powers	46
Purpose	46	(1)
Specific Principles	47
Money Laundering
Overview	1	(13)
Introduction	1	(3)
Perceived Aims of the POCA	4	(2)
Relationship with Earlier Legislation	6	(2)
Definition of Terms	8	(6)
Concealing the Proceeds of Criminal Conduct (s 327)	14	(11)
Basic Elements of the Offence	14	(2)
Avoiding Liability	16	(2)
Revision of Previous Provisions	18	(5)
The Legal Profession	23	(2)
Assisting Another to Retain the Benefits of Criminal Conduct (s 328)	25	(15)
Basic Elements of the Offence	25	(5)
Avoiding Liability	30	(1)
Revision of Previous Provisions	31	(1)
The Legal Profession	32	(8)
Acquisition, Use, and Possession of the Proceeds of Crime (s 329)	40	(7)
Basic Elements of the Offence	40	(4)
Avoiding Liability	44	(1)
The Legal Profession	45	(2)
Reporting under s 338	47	(6)
The Reporting Procedure	47	(3)
Protected and Authorized Disclosures	50	(3)
Failure to Disclose Knowledge or Suspicion of Money Laundering (s 330)	53	(18)
Introduction	53	(1)
The Regulated Sector	54	(3)
The Regulated Sector---The Position of Legal Advisers	57	(4)
Other Professions	61	(1)
The s 330 Offence of Failing to Disclose	62	(9)
Tipping Off	71	(10)
Introduction	71	(1)
Basic Elements of the Offence	72	(3)
Practical Dilemmas for the Legal Profession	75	(6)
Penalties	81
Civil Recovery of the Proceeds of Unlawful Conduct
Introduction	1	(15)
General	1	(5)
Representation	6	(2)
Relationship with Criminal Proceedings	8	(4)
The Human Rights Act	12	(4)
Definitions	16	(10)
Recoverable Property	16	(1)
Property and Value	17	(1)
Unlawful Conduct	18	(1)
Property Obtained through Unlawful Conduct	19	(3)
Exceptions	22	(2)
Associated Property	24	(2)
Acquisition in Good Faith	26	(2)
Tracing Property	28	(5)
Disposal of Original Property	28	(4)
Mixing Property	32	(1)
Procedure	33	(15)
Procedure Generally	33	(3)
Commencing Proceedings	36	(2)
Limitation	38	(1)
Burden of Proof	39	(1)
Standard of Proof	40	(3)
Production and Disclosure Orders, Search and Seizure Warrants	43	(5)
Interim Receiving Orders	48	(12)
General	48	(3)
The Effect of an Order	51	(4)
Receivers	55	(4)
Collateral Proceedings	59	(1)
The Making of a Recovery Order	60	(11)
General	60	(2)
Exceptions	62	(2)
Victims of Theft	64	(1)
Holders of Associated Property and Joint Tenants	65	(3)
Pension Rights	68	(1)
Insolvency	69	(1)
Consent Orders	70	(1)
The Trustee for Civil Recovery	71
Functions	71
Cash Seizure
Introduction	1	(5)
Definitions	6	(4)
`Cash'	6	(1)
`Recoverable Property'	7	(1)
`Unlawful Conduct'	8	(1)
`Property Obtained through Unlawful Conduct'	9	(1)
Search and Seizure	10	(9)
Search Powers	10	(5)
Prior Approval	15	(1)
Code of Practice	16	(2)
Seizure	18	(1)
Detention of Cash	19	(2)
Forfeiture	21	(5)
Powers	21	(4)
Representation	25	(1)
Release of Detained Cash	26	(1)
Victims and Other Owners	27	(1)
Compensation	28
Revenue Functions
General	1	(6)
Reasonable Grounds for Suspicion	7	(2)
Notice to the Commissioners	9	(7)
Vesting of Functions	9	(1)
Personal Income, Gain, and Company Profits	10	(3)
Inheritance Tax	13	(2)
Settlements	15	(1)
Appeals	16	(151)
Appendix 1 The Proceeds of Crime Act 2002 (Chapter 29)	167	(200)
Appendix 2 The Magistrates' Courts (Detention and Forfeiture of Cash) Rules 2002 (SI 2002/2998)	367	(15)
Appendix 3 Code of Practice Issued under Section 377 of the Proceeds of Crime Act 2002---Investigation Powers in Chapter 2, Part 8	382	(46)
Appendix 4 The Proceeds of Crime Act 2002 (Failure to Disclose Money Laundering: Specified Training) Order 2003 (SI 2003/171)	428	(2)
Appendix 5 The Proceeds of Crime Act 2002 (References to Financial Investigators) Order 2003 (SI 2003/172)	430	(5)
Appendix 6 The Proceeds of Crime Act (Recovery from Pension Schemes) Regulations 2003 (SI 2003/291)	435	(4)
Appendix 7 The Crown Court (Confiscation, Restraint and Receivership) Rules 2003 (SI 2003/421)	439	(23)
Appendix 8 The Crown Court (Amendment) Rules 2003 (SI 2003/422)	462	(3)
Appendix 9 The Criminal Appeal (Confiscation, Restraint and Receivership) Rules 2003 (SI 2003/428)	465	(19)
Appendix 10 The Money Laundering Regulations 2003 (SI 2003/3075)	484	(24)
Appendix 11 Practice Direction---Proceeds of Crime Act 2002 Parts 5 and 8: Civil Recovery	508	(10)
Appendix 12 Legal Services Commission---Guidance to Solicitors and Applicants Seeking Community Legal Service Funding for Proceedings under the Proceedings of Crime Act 2002 Involving the Assets Recovery Agency	518	(7)
Index	525