Cash seizure usually occurs in the following circumstances:
- At stop and search conducted by a police officer. This is the most frequent circumstance
- At border control in respect of something else where cash is found on a person
- At a business premises during a routine visit.
The burden of proof is on the police or the customs officer to prove that the money came from or was intended for criminal activity or unlawful conduct.
Grounds of suspicion can be determined by:
- The account given by the person in possession of the cash i.e. if answers to questions posed by the police do not add up this can cast doubt on the origin of the cash
- Intelligence held on the cash holder or their associates or suspected links with criminal activity in the UK or abroad.
Detention of cash
Cash seized may be detained for an initial period of 48 hours. Any application for further detention must be made to the Magistrates Court within the 48 hours. The Respondent can attend the hearing or instruct someone to represent them at the hearing to contest the detention of the cash.
In reaching its decision, the court will assess the evidence on the civil standard, deciding on the balance of probabilities if the cash is likely to be the proceed of crime and whether further detention is warranted.
The court can allow the authorities to continue to detain the cash for up to a maximum of 6 months (although it is common for the minimum period of 3 months to be granted) and on a further application up to a period of two years for further enquiries to be made for example. After this two year period if no decision has been made by the authorities regarding the cash, the cash must be returned or a hearing for forfeiture must take place.
The person from whom the cash was seized can also apply at any time to the courts for its return on the grounds that it is not the proceed of crime.
Finally, whilst cash seizure and detention of cash is undoubtedly a good mechanism in the prevention of crime and the fight against money laundering, it can cause insurmountable stress, delay and can be a highly intrusive process for the owner of the cash who claims that the cash has been obtained legitimately.