Proceeds of Crime and Asset Recovery

1
Proceeds of Crime and Asset Recovery

• 21 February 2007

2

• A Proceeds of Crime Legislative History

3
1978

• Operation Julie
• R v Cuthbertson
• Conspiracy to produce LSD
• Forfeiture Order - s 27 Misuse of Drugs Act 1971
• Cash, cars, paintings, bank accounts in
  Switzerland and France, a debt owed to a
  defendant
• Forfeiture order upheld by Court of Appeal

4
1981

• R v Cutherbertson
• House of Lords
• Conspiracy not an offence under 1971 Act
• S 27 - No extraterritorial effect
• S 27 - No enforcement machinery
• S 27 - No Parliamentary intention for orders
  against drug trafficking profits
• Allowed appeal against forfeiture order

5
1984

• Hodgson Committee recommendations
• Confiscation powers
• Prescribed minimum but no maximum
• Available in Crown Courts only
• Magistrates to have power to commit for
  confiscation

6
1985

• Home Affairs Select Committee
• Misuse of Hard Drugs Interim Report
• Approved US policy of giving courts draconian
  powers to remove proceeds of drug trafficking

7
1986

• Drug Trafficking Offences Act 1986
• First EW confiscation legislation
• Limited to drug trafficking cases
• Discretionary statutory assumptions

8
1988

• UN Vienna Convention
• Criminal Justice Act 1988
• Extended confiscation to non-drugs cases
• No statutory assumptions in non-drugs cases

9
1989

• Creation of Financial Action Task Force by G7
• Purpose the development and promotion
  of national and international policies to combat
  money laundering
• 40 Recommendations
• Mutual evaluations
• Blacklist NCCTs

10
1990

• Criminal Justice International Co-operation Act
  1990
• Introduction of cash forfeiture system
• Amendments to DTOA 1986
• Allowed UK to ratify Vienna Convention
• Criminal Justice (Confiscation) (NI) Order 1990
• First NI confiscation legislation
• Discretionary statutory assumptions in drugs
  cases
• No statutory assumptions in non-drugs cases
• Strasbourg Convention on Laundering, Search,
  Seizure and Confiscation

11
1991

• Home Office Working Group on Confiscation
• First report
• Recommended amendments to DTOA 1986

12
1993

• Criminal Justice Act 1993
• Created drug money laundering offences
• Amended DTOA 1986 and CJCNIO 1990
• Most amendments not brought into force

13
1994

• Drug Trafficking Act 1994
• Consolidation of drugs related confiscation and
  forfeiture provisions
• Mandatory statutory assumptions for drugs cases

14
1995

• Proceeds of Crime Act 1995
• More strengthening amendments
• Discretionary statutory assumptions in non-drugs
  cases

15
1996

• Proceeds of Crime (NI) Order 1996
• Replaced the 1990 Order
• Introduced mandatory statutory assumptions for
  drugs cases
• Introduced discretionary statutory assumptions
  for non-drugs cases

16
1997

• Home Office Working Group on Confiscation Third
  Report
• Recommended full civil forfeiture
• Recommended National Confiscation Agency
• Recommended further amendments to DTA 1994 and
  POCO 1996

17
2000

• PIU Report Recovering the Proceeds of Crime

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2002

• Proceeds of Crime Act 2002
• Creation of Assets Recovery Agency
• Civil recovery proceedings in High Court
• Taxation of suspected criminal gains
• Extended cash forfeiture scheme
• Prosecution appeals on confiscation issues
• Mandatory statutory assumptions if criminal
  lifestyle
• Strengthened money laundering offences

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2005

• Serious Organised Crime and Police Act 2005
• Significant amendments to civil recovery scheme
• Minor amendments to confiscation scheme

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2006

• Criminal Memoirs consultation by Home Office
• Possible new offence for payment to criminals for
  publications about crimes
• Possible enlargement of civil recovery scheme to
  cover publishers royalties

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2007

• Government introduces Serious Crime Bill
  proposing
• Merger of Assets Recovery Agency into Serious
  Organised Crime Agency
• Civil Recovery proceedings to be brought by
  prosecutors
• Additional investigation powers for cash
  forfeiture investigations

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Trends 1986 - 2007

• Increasing international pressure to comply with
  norms
• Less divergence between provisions in drugs and
  non-drugs cases
• Increasing use of civil alternatives
• Broadening definitions of criminal proceeds
• Reduction in judicial discretion in confiscation
  hearings

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Perception
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Perception
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Clean or Dirty Money ?

• Confiscation proceedings
• Civil recovery proceedings
• Cash forfeiture proceedings
• Taxation proceedings
• Money laundering offences

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Evidence often offered to prove criminal origin
of property (1)

• Previous criminal convictions
• Criminal associates
• Contamination of cash
• Accomplice evidence
• Audit Trails
• Unlikelihood of legitimate origin
• Absence of commercial or domestic logic

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Evidence often offered to prove criminal origin
of property (2)

• Expert evidence
• Packaging of proceeds
• Denomination of banknotes
• Lies by the defendant
• Inferences from silence
• Admissions