What are Cash forfeiture proceedings?
Detained or seized cash can be forfeited under section 297A (without a court order) and section 298 of POCA (with a court order).
Section 297A of POCA
While cash is detained in pursuance of an order under section 295 (2) made by the magistrates' court, a senior officer may give a notice for the purpose of forfeiting the cash or any part of it if it is satisfied that the cash or part of it:
· Is recoverable property, or
· Is intended by any person for use in unlawful conduct.
Section 298 of POCA
Cash forfeiture proceedings can be made by the Commissioners of Customs and Excise or a constable by application to the magistrates court if:
- Enquiries show that there is an illegitimate origin for the cash seized.
- Where the cash or part of it is recoverable property.
- Where criminal proceedings have concluded resulting in conviction of the defendant.
- Where a defendant is acquitted but the officer still believes there is a possibility to demonstrate the civil standard on the balance of probabilities that the cash or part of the cash was likely to be the proceed of crime or was intended for the use in criminal activity.
Application for cash forfeiture under section 298 should be made to the magistrates' court and served on all parties no later than 7 days before the hearing date. The application must be accompanied by the following supporting information:-
- Grounds for the application for forfeiture.
- Description of the circumstances of seizure.
- Details of the enquiries that have been concluded and their outcomes.
A directions hearing date is set by the court and the applicant and persons affected by the application are notified.
At the directions hearing the court may do the following:
- Where the application is contested, give case management directions including allocating a hearing date; or
- Where the application is uncontested, decide to rule on the application itself.
Uncontested cash forfeiture
The burden of proof is on the applicant to show that the money is recoverable property or is intended for use in unlawful conduct. Having considered the matter, the court may order the forfeiture of the cash. If such an order is made, this will be notified to all persons involved and any other affected persons.
The cash is detained until it is forfeited or the notice has lapsed. The notice will lapse if an objection is made within 30 days. However, if no objection is made within the time frame the cash will be forfeited along with interest accrued and paid into a consolidated fund.
Contested cash forfeiture
The owner of the cash can contest the cash forfeiture hearing for the return of the cash. It is a civil standard of proof. The burden of proof is on the respondent to provide any evidence they wish to rely on to show that the cash did not come from or was not intended for criminal activity or unlawful conduct by explaining the origin of the cash.
Third party interest
Any person who claims that they have an interest in the cash seized/detained can apply to the magistrates court for the cash or part of it to be released to them under section 301 of POCA. A claim can be brought by any person who claims that the cash rightfully belongs to them and they have been deprived of it through unlawful conduct.
Challenge to a forfeiture order
This can be done by way of an application to the magistrates' court under section 297E of POCA to set aside the forfeiture order or by an appeal to the crown court under section 299 of POCA.
These proceedings are undoubtedly an effective mechanism in the prevention of crime and the fight against money laundering. However, cash forfeiture can be a daunting process for those individuals who claim that the cash seized rightfully belongs to them. It is a process which provides the opportunity to such persons to make representations to demonstrate that the cash rightfully belongs to them and has derived from a legitimate source.
For those individuals faced with such proceedings, we advise them to seek immediate legal advice to ensure that the matter is dealt with in the proper manner from the outset.