Cash Forfeiture Proceedings

The Law in Respect of Cash Forfeiture

Cash forfeiture proceedings are civil proceedings and are therefore determined on the balance of probabilities (s.241(3) POCA).

It is irrelevant to the Court’s considerations whether or not criminal proceedings have been brought in relation to the relevant conduct (s.240(2) POCA), and therefore whether or not those proceedings have resulted in an acquittal. Hearsay evidence is admissible, pursuant to the Civil Evidence Act 1995 and the Magistrates’ Courts (Hearsay Evidence in Civil Proceedings) Rules 1999, subject to consideration as to weight.

The Test

The test to be applied by the Court is set out in s.298(2) POCA. That section provides that the Court may order the forfeiture of the cash or any part of it if satisfied that the cash or part of it:

• is recoverable property, or
• is intended by any person for use in unlawful conduct.

“Recoverable property” is defined in section 304(1) POCA as that which is obtained through unlawful conduct.

Unlawful conduct” is defined in section 241 POCA:

• Conduct occurring in any part of the United Kingdom is unlawful conduct if it is unlawful under the criminal law of that part.
• Conduct which occurs in a country outside the United Kingdom and is unlawful under the criminal law of that country, and

if it occurred in a part of the United Kingdom, would be unlawful under the criminal law of that part, is also unlawful conduct.

The court or sheriff must decide on a balance of probabilities whether it is proved that any matters alleged to constitute unlawful conduct have occurred, or (b) that any person intended to use any cash in unlawful conduct.

The Case Law

The Divisional Court in Angus v UKBA [2011] EWHC 461 (Admin) held that the consequence of this section was that:

in a case of cash forfeiture, a customs officer does have to show that the property seized was obtained through conduct of one of a number of kinds each of which would have been unlawful conduct.

It followed that it was not enough for the Crown Court in Angus to have made a finding that the cash seized was obtained as a result of criminal activity but that such activity was neither specified nor identified.

The Court must therefore decide, on the balance of probabilities, whether the Police have demonstrated that:

• The cash was obtained by or in return for a specified kind or kinds of unlawful activity; and/or
• The cash was intended to be used by any person in unlawful conduct.

The Continued Issue of Proportionality

In Ahmed v Revenue and Customs Commissioners [2013] EWHC 2241 (Admin), the High Court reduced an order for forfeiture to avoid a disproportionate interference with the owner’s property rights under the ECHR. The issue of proportionality is accepted as applying to applications for confiscation. This was set out in R v Waya [2012] UKSC 51.

Boljievic v Croatia (Application Number 43492/11)held that applicants and respondents must be careful to ensure applications for AFOs and Forfeiture are proportionate on their facts. In the matter of Boljievic it was held that forfeiting the entire sum that was disproportionate to an administrative offence i.e. failing to disclose a customs offence.