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Increasing the reach of The Proceeds of Crime Act 200218th November 2015 Business Crime
The Home Office recently published statutory instruments relating to Part 11 of the Proceeds of Crime Act 2002. The amendments come at an important time for a government seeking to restrict the large scale movement of proceeds of crime between jurisdictions, but they also impact upon the 'bread and butter' orders in smaller cases and new provisions in the Acts mentioned below will be of great interest to constabularies wishing to supplement dwindling budgets. Defending in cases where these powers are used will require attention to detail.
- The Proceeds of Crime Act 2002 (External Investigations)(Amendment)(No. 2) Order 2015
- The Proceeds of Crime Act 2002 (External Investigations)(Amendment) Order 2015
- The Proceeds of Crime Act 2002 (Enforcement in different parts of the United Kingdom)(Amendment) Order 2015
- The Proceeds of Crime Act 2002 (External requests and orders)(Amendment) Order 2015
Together, the instruments provide for cooperation in the investigation and enforcement of Orders relating to the recovery of criminal proceeds. Separate instruments provide for cooperation between the jurisdictions within the United Kingdom and for the United Kingdom to assist overseas authorities. The instruments are required because of amendments made to POCA by other legislation, namely the Policing and Crime Act 2009, the Crime and Courts Act 2013 and the Serious Crime Act 2015. The legislation gives authorities new powers in the investigation and recovery of criminal proceeds and the statutory instruments make the powers available in the course of providing assistance to Scotland, N.Ireland and jurisdictions outside the UK.
Sections 7, 16 and 29 of the 2015 Act amend the 2002 Act to provide for a compliance order to be made by the court in conjunction with the confiscation order. This provides the court with the power to make such an order as it believes appropriate for the purposes of ensuring the payment of the confiscation order. The court may order restrictions, prohibitions or requirements, provided they are appropriate for the purpose of securing the payment of the confiscation order. It must also consider whether to impose a ban on the defendant's travel outside the United Kingdom. These provisions came into force in England, Wales and Northern Ireland on 1
June 2015. Scottish Ministers plan to commence these provisions on 1 February 2016.
Sections 55, 56 and 57 of the Police and Crime Act 2009 amend the 2002 Act providing powers to search for, seize and detain property with a view to the future payment of any confiscation order. The new sections of the 2002 Act include a new detention order where a court authorises continued detention of seized property. These provisions came into force on 1 June 2015 in England, Wales and Scotland. The intention is that they will come into force in Northern Ireland on 1 February 2016.
Sections 58, 59 and 60 of the 2009 Act amend the 2002 Act, enabling the court to order the sale of seized property so that a confiscation order may be paid. These provisions came into force on 1 June 2015 in England, Wales and Scotland; the intention is that they will come into force in Northern Ireland on 1 February 2016.
It will take time for enforcing authorities to familiarize themselves with how the orders can assist them on a day to day basis, but the provisions certainly strengthen an already draconian set of powers. Careful advice will be required in cases involving the operation of these orders, particularly where innocent third parties have a proprietary interest in seized property.
Evan Wright is a partner in the Business Crime and Regulation department, specialising in financial crime cases.