The background to seizing unlawfully gained proceeds
The need for statute law surrounding the issue of recovering any benefits of crime became established in a 1970’s drug trafficking case dubbed ‘Operation Julie’. It is significant as around £750,000 worth of drug trafficking proceeds were traced and held following conviction, however the House of Lords ruled that they were to be released due to the lack of governing policy on the matter. Following this apparent miscarriage of justice, governing statute law was introduced in the Drug Trafficking Offences act 1986, later to be extended to other offences that carry financial gain in the Criminal Justice Act 1988 for England and Wales, and more recently the Proceeds of Crime Act 2002.
Proceeds Of Crime Act 2002: Assets Recovery Agency (ARA) and the Serious Organised Crime Agency (SOCA)
The Proceeds of Crime Act 2002 is in twelve parts, with part one creating an Assets Recovery Agency (ARA), operational as of February 2003, which was granted the authority to confiscate/seize proceeds of crime. Due to targets not being met, the ARA, as of 2008, seized operation and its responsibilities were redistributed, with civil recovery being taken over by SOCA.
Who can assist in seizure of criminally gained proceeds?
Police and Criminal Evidence Act 1984 (PACE)
The Police and criminal Evidence Act 1984 (PACE) acknowledges the need for police constables to have help from relevant experts in the field a given type of crime. This refers to searching and seizure procedures. Under Section 16(2) of PACE, a search warrant authorises the necessary presence of a person(s) accompanying the constable in possession of the warrant. And under the new subsection (2A) any such person has the same powers as the constable whom he is accompanying in relation to seizing the proceeds to which the warrant relates. This can only be done under the supervision of a police constable.
It is considered necessary for PACE to have made this change as experts in fields such as IT and Finance are more likely to be able to obtain incriminating files through their expertise where a police constable may not necessarily be familiar with certain search methods or record recoveries. Experts can therefore take on a more active role in the search for evidence of criminally gained proceeds and in seizing material.
Following conviction, financial benefit obtained by the offender can be recovered with the use of a confiscation order obtained by the court. The custodial sentence imposed will be increased if the amount that needs to be recovered isn’t paid. Assets and property can be included in a confiscation order to equal the financial gain from criminal proceeds.
What amount does the court have the power to confiscate?
The amount of the sum to be confiscated is calculated by the court, and the offender must pay that amount or if this is not possible, however much can possibly be confiscated at the time. Alternatively in some circumstances, assets and income and expenditure for the previous 6 years before proceedings can be assumed to be from criminal activity, the court can calculate an amount higher than perhaps originally anticipated to reflect the activity over this 6 year period, and this higher amount can be confiscated.
Proceeds of crime that will be less likely to be recovered are those that have been ‘Laundered’ i.e. cleansed of their illegal origins through the conversion into other assets. Within the Proceeds of Crime Act 2002, there are several illegal acts outlined that are considered to form the process of ‘Money Laundering’. However the primary actions outlined in the act show it is an offence to conceal, disguise, convert or transfer criminal property or remove criminal property from England, Wales, Scotland or Northern Ireland