Cash Seizure

Despite being a Civil Action (Butler v UK ECHR [2002]), a Cash Forfeiture action is heard in the Magistrates Court. Cash must firstly be seized under s. 294 of Proceeds of Crime Act (2002) [POCA], this cash can be seized on the basis that there are reasonable grounds to suspect that the cash is either:

• Recoverable Property, or
• Intended by any person for use in Unlawful Conduct.

Cash can be seized either by a Customs Officer or Police Constable.

Cash that is seized under Section 194 may only be held for 48 hours after which time an order must be sought from the Magistrates Court to extend the period. S. 295 (POCA) limits this extension to 6 months at which time a further extension must be sought; it may not be extended beyond 2 years.

What are Reasonable Grounds?

Within sections 294 and 295 there is no explicit definition of what would amount to reasonable grounds. I have therefore considered the relevant case law.

According to Hansard, which is a transcript of parliamentary discussions, it is not to allow for speculative searches.

The case of UKBA v Tuncel and Basbaydar [2012] EWHC 402 (Admin) has provided some guidance on the matter. In Tuncel, the High Court held that when it comes to an application for permanent forfeiture of that cash, all the court has to be satisfied of is that on the information available at the time of the court hearing, there are reasonable grounds to believe the cash is so tainted. There is no need for the court to conduct a retrospective investigation into the reasonableness of the grounds relied on by the officers at the time of the earlier seizure.

Whilst no cases go as far as to set out the specific circumstances in which reasonable grounds are founded, the below sets out some examples of case law which offer guidance.

In Angus v UKBA [2011] EWHC 461 (Admin) the Defendant had been stopped at a British airport and £40,000 in cash was found in her handbag. The court determined in this instance that it was necessary, for forfeiture, to establish the specific course of criminal conduct that the funds originated from.

In Chief Constable of Merseyside v Hickman [2006] EWHC 451 (Admin) a sum of £6750 was found alongside an amount of Cannabis. It was confirmed that the presence of drugs alongside the funds amounted to reasonable grounds to seize. Furthermore, the case of Wiese v UK Border Agency [2012] EWHC 2549 (Admin) offers guidance on when an individual is found with cash in an Airport travelling. In this circumstance, there will usually be reasonable grounds in the absence of an adequate explanation.

Under s.292, the Secretary of State was required to issue a code of practice in connection with the search power pursuant to s.289. It should be noted at the outset, that if searches are conducted under other legislation which result in cash being seized under section 294 of the Act, the provisions of this code do not apply to that search.However, it can clearly offer guiadnce as to the meaning of reasonable grounds:

“Whether there are reasonable grounds for suspicion will depend on the circumstances in each case. There must be some objective basis for that suspicion based on facts, information and / or intelligence.”

“Reasonable suspicion can never be supported on the basis of personal factors alone without reliable supporting intelligence or information or some specific behaviour by the person concerned. For example, a person’s race, age, appearance, or the fact that the person is known to have a previous conviction, cannot be used alone or in combination with each other as the reason for searching that person.” 

“Reasonable suspicion cannot be based on generalisations or stereotypical images of certain groups or categories of people being more likely to be involved in criminal activity. It should normally be linked to accurate and current intelligence or information.”

What is Recoverable Property?

Recoverable property is defined under POCA as being obtained through unlawful conduct. The Crown do not have to show that the person from whom the asset is being taken is himself the perpetrator of an offence, he may simply be holding an asset which was obtained by the criminal conduct of someone else (although a bona fide purchaser for value is protected). The defendant need not be convicted of a crime.

It is worth noting that since the case of Angus v UKBA [2011] EWHC 461 (Admin), the prosecution must show that the cash seized was obtained “through conduct of one of a number of kinds of criminal/unlawful conduct”.

What is Property Intended for use in Criminal Conduct?

This is very straight forward, if there are reasonable grounds to suspect that the cash is to be used to carry out a crime, fund crime or assist in the commission of crime then there will be evidence that the cash is intended for use in criminal conduct.

What has to be Proven?

All of the above has to be proven to the civil standard, this means on the balance of probabilities. In ordinary terms, this means that the Police must prove that it is more likely than not that the cash meets the conditions set out above.