Millington and Sutherland Williams on The Proceeds of Crime

by Millington OBE, Trevor; Sutherland Williams, Mark

• ISBN13: 9780199566129
• ISBN10: 0199566127
• Edition: 3rd
• Format: Hardcover
• Copyright: 2010-05-02
• Publisher: Oxford University Press

Summary

The Proceeds of Crime, this new edition has been fully updated to include all important legislative changes over the last three years, and covers all significant case law, including discussion on the release of restrained funds to meet legal expenses following the decisions of the Court of Appeal in Briggs-Price v RCPO and the rights of innocent spouses in the matrimonial home in Gibson v RCPO. It also covers changes in regulation and enforcement including an examination of the future of civil recovery following the abolition of the Assets Recovery Agency and the transfer of its power to the Serious Organized Crime Agency. The new edition incorporates in-depth coverage of the relevant legislation, with analysis of the Proceeds of Crime Act 2002 and reference to case law under both the Drug Trafficking Act 1994 and the Criminal Justice Act 1988.

Author Biography

Trevor Millington OBE is a barrister and Senior Lawyer in the Asset Forfeiture Division of the Revenue and Customs Prosecutions Office. Since 1989 he has specialised exclusively in the law relating to the restraint and confiscation of the proceeds of crime. In 1994 he was seconded to Gibraltar where he was responsible for drafting legislation to implement the EC Money Laundering Directive. On his return he was invited to establish an asset forfeiture unit within Customs and he has since pioneered the development of that area of the law, and has featured in a great number of the leading cases within the proceeds of crime field. He has lectured and written widely on the subject and is a member of the editorial board of The Proceeds of Crime Review. He is both a member of the Fraud Advisory Panel and a committee member of the Proceeds of Crime Lawyers Association.
Mark Sutherland Williams is a barrister and head of the Asset Forfeiture Group at 3 Paper Buildings. He has appeared as counsel in a number of the most significant cases that have been decided in the proceeds of crime field in recent years, including Sivaraman, Briggs-Price, Capewell, and Islam. He was the first counsel to be instructed by the Director of the Assets Recovery Agency to obtain an Interim Receivership Order and a Property Freezing Order and the first counsel to be instructed to obtain an external restraint order under SOCPA. He regularly appears in both the High Court and the Court of Appeal in specialist forfeiture, receivership, restraint, and confiscation order matters. He is the Treasurer of the Proceeds of Crime Lawyers Association, a visiting lecturer in Commercial Fraud at SOAS, and a member of the Fraud Advisory Panel.

Table of Contents

Setting the Scene

Introduction

Why was Confiscation Law Enacted?

The Object of the Confiscation Regime

The Drug Trafficking Act 1994: A Summary

The Criminal Justice Act 1988: A Summary

The Proceeds of Crime Act 2002: A Summary

Agencies responsible for the Enforcement of the Legislation

The International Element

Money Laundering

Recent Developments in Confiscation Law

Restraint Orders

Introduction

Restraint Orders

Charging Orders

Protecting Restraint Orders in Relation to Real Property

Ancillary Orders: Seizure, Disclosure and Repatriation of Assets

Introduction

Seizure of Assets

Disclosure Orders

Repatriation of Assets

Management Receivers

Introduction

Jurisdiction to Appoint Management Receivers

Exercising the Discretion to Appoint Management Receivers: The Capewell Guidelines

Status of the Receiver on Appointment

Duties and Liabilities of the Receiver

Remuneration of Receivers

Discharge of the Receiver

Taxation and Receivers

Applications to Vary and Discharge Restraint Orders

Introduction

Applications to Discharge Restraint Orders

Applications to Vary the Restraint Order

The Principles on which the Court Acts: The "Legislative Steer"

The Source for Payment of Legal Fees and General Living Expenses

Release of Funds after a Confiscation Order has Been Made

Enforcement of Restraint and Receivership Orders: Contempt of Court

Introduction

Procedure on Applications

The Hearing

Practice and Procedure in Crown Court restraint and receivership cases under POCA

Introduction

The Overriding Objective

Procedure on Applications for Restraint Orders

Procedure on Applications to Vary or Discharge the Order

Receivership Proceedings

Provisions as to Evidence and the Service of Documents

Preparing for Confiscation Hearings

Introduction

Confiscation in the Magistrates' Court

The Basics of Confiscation under POCA

Postponement of POCA Confiscation Hearings

Preparatory Steps for a POCA Hearing

The Confiscation Hearing

Introduction

A Mandatory Regime

The Defendant's Benefit

The Recoverable Amount

Tainted Gifts

Time for Payment

The Effect of a Confiscation Order on Sentence and the Court's Other Powers

Confiscation and the ECHR

Appeals

Defendants who Die or Abscond

Case Digest: Key Post-May Cases in the Court of Appeal

A Final Summary

Reconsideration of Confiscation Orders

Introduction

Variation and Discharge under the Proceeds of Crime Act 2002

Reconsideration of Case where no Confiscation Order was Originally Made

Reconsideration of Benefit: no Confiscation Order Originally Made

Where a Confiscation Order has been Made: Reconsideration of Benefit

Procedure: applications under ss 19, 20, or 21 of the Act

Increase in Available Amount

Inadequacy of Available Amount

Variations and Discharge for Defendants who Abscond

Variations to confiscation orders under the Drug Trafficking Act 1994

Variations to confiscation orders under the Criminal Justice Act 1988

Enforcement of Confiscation Orders

Introduction

Roles of Law Enforcement Agencies in the Satisfaction of Confiscation Orders

The Joint Asset Recovery Database - "JARD"

Voluntary Satisfaction by the Defendant

General Living Expenses and Legal Fees

Enforcement Receivers under POCA

Procedure on Applications for the Appointment of Enforcement Receivers

Enforcement Receivers under the CJA and DTA

The Powers of the Magistrates' Court

Delay in Taking Enforcement Action

The Insolvent Defendant

Introduction

The Position under POCA

The Position under the Old Legislation

Interaction between Restraint and Insolvency Proceedings

Civil Recovery: Property Freezing Orders, Receivers, and Legal Expenses

Introduction

Overview in Relation to Civil Recovery

Property Freezing Orders

Management Receiving Orders

Interim Receiving Orders

The Legislative Steer and Third Party Creditors

The Insolvent Respondent

Compensation in IRO and PFO Cases

Legal Expenses in Civil Recovery Proceedings

Civil Recovery: Recovery Orders the ECHR and Taxation

Introduction

Recovery Orders

Safeguards and Exemptions in Civil Recovery

The Impact of the European Convention on Human Rights on Civil Recovery

Pension Schemes

Civil recovery and taxation

The Seizure and Recovery of Cash

Introduction

The Seizure and Forfeiture of Cash

Practice and Procedure

Continued Detention Hearings: Practice

Applications for Forfeiture of Detained Cash

The Hearing

Rules of Evidence

Costs and Compensation

Appeals

Searches and Seizure of Cash

Compatibility of the Forfeiture Provisions with the ECHR

Detention and Forfeiture of Terrorist Cash

The Control of Cash (Penalties) Regulations

Third Parties

Introduction

Restraint Orders

Confiscation Orders

Specific Third Party Claims

Conclusion

Investigations

Introduction

A Short History of the Legislative Provisions

Defining Investigations

Courts and Judges having Jurisdiction to Make Orders

Production Orders

Search and Seizure Warrants

Judicial Discretion

Overseas Investigations

Customer Information Orders

Account Monitoring Orders

Disclosure

Statements Made in Response to Orders

Code of Practice

Financial Reporting Orders under the Serious Organised Crime and Police Act 2005

Appeals

Introduction

Restraint Order Appeals: Practice and Procedure

Receivership Order Appeals: Practice and Procedure

Confiscation Order Appeals: Practice and Procedure

The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003

Appeals against Forfeiture Orders

Appeals under Part 6 of POCA: Revenue Functions

The Criminal Cases Review Commission

Appeals against Findings of Contempt of Court

Thumbnail Guide to the Appeal Provisions within the Criminal Procedure Rules

CJA and DTA Appeals

The International Element

Introduction

International Assistance under the DTA and CJA

Co-operation under POCA

Enforcement of POCA Confiscation Orders in Different Parts of the UK

Money Laundering

Introduction

Money Laundering under the Proceeds of Crime Act 2002

The EC Money Laundering Directives

Disclosure of Suspicious Transactions

Introduction

Disclosure of Suspicious Transactions under POCA

Professional Legal Advisers

Suspicious Activity Reports: 'SARS'

Tipping Off

Costs, Funding Issues, and Compensation

Introduction

The Magistrates' Court and Costs

The Crown Court and Costs

Receivership Costs

Costs: High Court / Civil Cases

Legal Expenses and Legal Funding

Compensation

Condemnation and Restoration

Introduction

The Condemnation and Forfeiture of Goods

Detention, Seizure and Condemnation

Condemnation: Practice and Procedure

Condemnation: Costs and Compensation

Condemnation Appeals

Condemnation in the High Court

Condemnation and the ECHR

Useful Resources

Red Diesel Cases

Delivery Up

Restoration

Restoration: Practice and Procedure

Restoration Appeals

Restoration: Costs and Compensation

The ECHR and Restoration

Useful Resources

Confiscation Orders - Proceeds of Crime Act 2002 sections 6-18 (as amended)

Restraint orders - Proceeds of Crime Act 2002 sections 40-42 (as amended)

Receivers - Proceeds of Crime Act 2002 sections 48-51 (as amended)

The legislative steer - Proceeds of Crime Act 2002 section 69 (as amended)

Cash seizures - Proceeds of Crime Act 2002 sections 294-303A (as amended)

Powers of Interim Receiver and Administrator - Proceeds of Crime Act 2002 Schedule 6

Proceeds of Crime Act Restraint Order

Management Receivership Order

Enforcement Receivership Order

Letter of Agreement between Prosecutor and Receiver

Variation of Restraint Order

Certificate of Inadequacy

Extract from Practice Direction on the Proceeds of Crime Act 2002 - Section III, Civil Recovery

Extract from Practice Direction on the Proceeds of Crime Act 2002 Parts 5 and 8 - Section IV, Civil Recovery

Interim receiving order under section 246 of the Proceeds of Crime Act 2002

Property Freezing Order

Civil Recovery Order

Financial Reporting Order

Condemnation and Forfeiture of Goods - Schedule 3 of the Customs and Excise Management Act 1979

Table of Contents provided by Publisher. All Rights Reserved.