Proceeds of Crime Act 2002: cash seizure and detention

Under the Proceeds of Crime Act 2002 (POCA 2002) (as amended by the Criminal Finances Act 2017 (CFA 2017)), police offices, officers of HMRC, Serious Fraud Office (SFO) officers, immigration officers and certain financial investigators have the power to seize cash where they have reasonable grounds to suspect that:

  • the cash is recoverable property; or
  • the cash is intended by any person for use in unlawful conduct.

Recoverable property is any property ‘obtained through unlawful conduct’. It remains recoverable even if the original property has been disposed of (ie, if stolen goods are sold for cash, the cash obtained from the sale is capable of being seized).

Unlawful conduct means any conduct which is:

  • unlawful under UK law; or
  • against the laws of the country where the crime was committed (which would also be unlawful if it occurred in part of the UK).

If it is an immigration officers using these powers, unlawful conduct is that which:

  • relates to the entitlement of one or more individuals who are not UK nationals of the UK to enter, travel across, or be in, the UK; or
  • is undertaken for the purposes of, or otherwise in relation to, a relevant nationality enactment.

Cash for the purposes of POCA 2002 includes:

  • notes and coins of any type of currency;
  • postal orders;
  • bankers drafts;
  • cheques (including travellers cheques);
  • bearer bonds and bearer shares;
  • any sort of monetary instrument specified by the Secretary of State in an order;
  • betting slips;
  • gaming vouchers;
  • fixed value casino tokens.

Burden of proof

Although such cash seizure and forfeiture proceedings arise where criminality is suspected, they are civil in nature rather than criminal so the burden of proving that the cash was intended to be used for unlawful purposes is on the balance of probabilities, rather than the stricter criminal standard of beyond reasonable doubt.

Searches

Search powers should only be carried out with prior approval of magistrates unless obtaining this would be impracticable. If the matter is urgent, approval can be granted by a senior officer.

The minimum amount of cash which can be searched for is currently £1000. There is no maximum amount.

Searches can be carried out on individuals and vehicles on public property and on private property (including vehicles parked thereon).

A search can only be carried out on a premises if:

  • the searching officer already has legal authority to be there (through statute or invitation;
  • there are reasonable grounds to suspect that the cash on the premises amounts to at least £1000 and is either recoverable property or meant to be used unlawfully.

If cash is seized

If cash is seized, officers have two working days to hold the cash after which they must:

  • return it;
  • ask for an extension of time in which to detain the cash (each period up to six months extended to not more than two years);
  • issue a forfeiture notice under POCA 2002, s 297A;
  • issue forfeiture proceedings in the magistrates’ court in accordance with POCA 2002, s 298.