Proceeds of Crime - Forfeiture, Freezing and Confiscation
The Proceeds of Crime Act and the introduction of the Criminal Finances Act 2017 have led to a substantial increase in civil proceedings being brought in the Criminal Courts. This can lead to accounts being frozen and funds seized.
Cash Seizure
The Police have the power to seize cash that they find either as a result of planned or random searches. They can only seize the cash for a period of 48 hours before which they must make an application to the Magistrates Court.
The test to be applied is whether there are reasonable grounds to suspect that the cash is either recoverable property or intended for use in criminal conduct.
Once the initial 48 hour period has expired, the maximum length of time that cash can be detained by order of the Magistrates Court is 6 months before it has to be renewed. The maximum total period is 2 years.
Detention of cash can be opposed on the basis that the investigation is not being carried out diligently or that there are no reasonable grounds to detain the cash.
Account Freezing Orders
As a result of the recent changes to the Proceeds of Crime Act, prosecuting authorities are increasingly seeking to freeze accounts whilst they are carrying out the investigations. This can have a serious impact on both individuals and companies and can lead to significant financial losses. These orders are often sought at short notice and often the account holder will not even be informed.
This can be in the format of an Account Freezing Order (dealt with at the Magistrates Court) or a Moratorium Order (heard before the Crown Court).
Rhys is regularly instructed to oppose the imposition of both AFOs and Moratorium orders. Rhys has an excellent track record of successfully having orders discharged.
This is a new and developing area but Rhys has already instructed on various AFOs, many of which with international aspects.
It is vital that when you are the subject of an AFO you have proper representations and advice on how to approach both the order and the wider investigation. Rhys has regularly opposed these orders relying on arguments relating to proportionality, errors in service and the absence of underlying evidence to show that the funds are criminal property.
Cash Forfeiture
Proceedings relating to cash forfeiture often begin by funds being seized and an application being made for continued detention of these funds. Often, the best time to challenge the order is at the outset of the proceedings when the Applicant (usually police or regulatory authorities) seeks a period of 6 months to investigate the funds that have been seized.
If the Applicant is satisfied that there are reasonable grounds to believe the funds are criminal property or intended for use in criminal conduct then they will make an application to forfeit the funds.
Rhys has extensive experience in opposing these orders but is uniquely placed in that he has previously been instructed by the Police and other authorities to seek forfeiture of funds - thus he understands the intricate approach taken by those applying for forfeiture.
Confiscation Proceedings
Where an individual has been convicted of an offence, the Prosecution are increasingly commencing confiscation proceedings. This is one of Rhys' areas of specialism.
Rhys is well versed in dealing with confiscation proceedings arising from complex substantive proceedings. Once confiscation proceedings are instigated, he has the expertise to identify the legal issues at an early stage and instruct specialist forensic accountants, drugs valuation experts and chartered surveyors where appropriate.
Rhys has successfully challenged both the benefit figure and available amount asserted by the prosecution by conducting in depth analysis of the substantive offence, while gathering evidence on behalf of our clients who are often in custody and have difficulty obtaining documentation to assist with their defence.
Rhys is also very experienced in dealing with applications by the prosecution pursuant to Section 22 of POCA. This is where the prosecution seek to vary a confiscation order to increase the available amount and can take place many years after the order has been made.
