Cash Seizure and Forfeiture: 'Using' the cash in crime: Appeal Decision

By Evan Wright @ Jan 4, 2013 in Business Crime
Evan Wright

We are often instructed in cash seizure and forfeiture cases brought in accordance with The Proceeds of Crime Act. The applications either form part of a larger case or stand alone. Forfeiture depends upon whether or not the cash represents the proceeds of crime or is intended for use in criminal activity. Many cases therefore turn on an interpretation of how the cash was going to be 'used'. This issue was considered by the Court in:-

Begum v West Midlands Police and Birmingham Magistrates Court [2012] EWHC 2304 (Admin) - 3rd July 2012

The Appellant was searched by the Respondent Police force and was found to be in possession of £7,150.00 in cash. The cash was the Appellant's savings, however, the Appellant was in receipt of State benefits and the cash had not been and would not be declared on State benefits applications as it might have adversely affected her claim, the cash being an amount greater than the savings limit for receiving State benefits. The Respondent applied for forfeiture of the cash pursuant to the Proceeds of Crime Act 2002, s.298(2) on the basis that it had been intended for use in unlawful conduct. The Magistrates' Court found that the cash had indeed been intended for use in unlawful conduct and granted the Respondent's application. The Appellant appealed by way of case stated.

Aikens LJ held that the appeal raised an issue on the scope of s.298(2). It was accepted that the conduct of the Appellant involved 'unlawful conduct' because she intended deliberately to deceive the Department for Work and Pensions as to the amount of her savings. This would have given rise to more than one criminal offence. However, the cardinal question for the purpose of s.298(2) is whether the actual cash was for use in the intended unlawful conduct of the Appellant.

In allowing the appeal the Court of Appeal held that the Appellant did not intend to apply this cash in any positive sense to deceive the Department for Work and Pensions. The unlawful conduct of concealing the fact that the Appellant had more than the limit of savings of £6,000.00 would have occurred whether or not the Appellant had the money in cash; she could, after all, have had the additional £1,150.00 in a bank account or, indeed, all £7,150.00 in a bank account. The intent was to conceal the fact of having that sum of money in savings and that does not amount to the 'use' of the cash in the unlawful conduct intended in this case. In fact, it was the very opposite of a 'use' - the Appellant intended to conceal the fact that she had the money, but did not intend its use in any other way in order to further her intended unlawful conduct.

How we can help

We can advise on the merits of applications for the return of detained cash and we can offer representation at the lower and higher courts in applications for detention or forfeiture. Instructions will usually be privately funded but our rates are competitive and we have an enviable track record in securing the return of cash on behalf of our clients. Contact the Business Crime team on 0845 402 0001 or use the website contact box for further information.

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