Millington and Sutherland Williams on The Proceeds of Crime, 3rd Edition

1: Setting the Scene
Introduction
Why was Confiscation Law Enacted?
The Object of the Confiscation Regime
The Drug Trafficking Act 1994: A Summary
The Criminal Justice Act 1988: A Summary
The Proceeds of Crime Act 2002: A Summary
Agencies responsible for the Enforcement of the Legislation
The International Element
Money Laundering
Recent Developments in Confiscation Law
2: Restraint Orders
Introduction
Restraint Orders
Charging Orders
Protecting Restraint Orders in Relation to Real Property
3: Ancillary Orders: Seizure, Disclosure and Repatriation of Assets
Introduction
Seizure of Assets
Disclosure Orders
Repatriation of Assets
4: Management Receivers
Introduction
Jurisdiction to Appoint Management Receivers
Exercising the Discretion to Appoint Management Receivers: The Capewell Guidelines
Status of the Receiver on Appointment
Duties and Liabilities of the Receiver
Remuneration of Receivers
Discharge of the Receiver
Taxation and Receivers
5: Applications to Vary and Discharge Restraint Orders
Introduction
Applications to Discharge Restraint Orders
Applications to Vary the Restraint Order
The Principles on which the Court Acts: The "Legislative Steer"
The Source for Payment of Legal Fees and General Living Expenses
Release of Funds after a Confiscation Order has Been Made
6: Enforcement of Restraint and Receivership Orders: Contempt of Court
Introduction
Procedure on Applications
The Hearing
7: Practice and Procedure in Crown Court restraint and receivership cases under POCA
Introduction
The Overriding Objective
Procedure on Applications for Restraint Orders
Procedure on Applications to Vary or Discharge the Order
Receivership Proceedings
Provisions as to Evidence and the Service of Documents
8: Preparing for Confiscation Hearings
Introduction
Confiscation in the Magistrates' Court
The Basics of Confiscation under POCA
Postponement of POCA Confiscation Hearings
Preparatory Steps for a POCA Hearing
9: The Confiscation Hearing
Introduction
A Mandatory Regime
The Defendant's Benefit
The Recoverable Amount
Tainted Gifts
Time for Payment
The Effect of a Confiscation Order on Sentence and the Court's Other Powers
Confiscation and the ECHR
Appeals
Defendants who Die or Abscond
Case Digest: Key Post-May Cases in the Court of Appeal
A Final Summary
10: Reconsideration of Confiscation Orders
Introduction
Variation and Discharge under the Proceeds of Crime Act 2002
Reconsideration of Case where no Confiscation Order was Originally Made
Reconsideration of Benefit: no Confiscation Order Originally Made
Where a Confiscation Order has been Made: Reconsideration of Benefit
Procedure: applications under ss 19, 20, or 21 of the Act
Increase in Available Amount
Inadequacy of Available Amount
Variations and Discharge for Defendants who Abscond
Variations to confiscation orders under the Drug Trafficking Act 1994
Variations to confiscation orders under the Criminal Justice Act 1988
11: Enforcement of Confiscation Orders
Introduction
Roles of Law Enforcement Agencies in the Satisfaction of Confiscation Orders
The Joint Asset Recovery Database - "JARD"
Voluntary Satisfaction by the Defendant
General Living Expenses and Legal Fees
Enforcement Receivers under POCA
Procedure on Applications for the Appointment of Enforcement Receivers
Enforcement Receivers under the CJA and DTA
The Powers of the Magistrates' Court
Delay in Taking Enforcement Action
12: The Insolvent Defendant
Introduction
The Position under POCA
The Position under the Old Legislation
Interaction between Restraint and Insolvency Proceedings
13: Civil Recovery: Property Freezing Orders, Receivers, and Legal Expenses
Introduction
Overview in Relation to Civil Recovery
Property Freezing Orders
Management Receiving Orders
Interim Receiving Orders
The Legislative Steer and Third Party Creditors
The Insolvent Respondent
Compensation in IRO and PFO Cases
Legal Expenses in Civil Recovery Proceedings
14: Civil Recovery: Recovery Orders; the ECHR; and Taxation
Introduction
Recovery Orders
Safeguards and Exemptions in Civil Recovery
The Impact of the European Convention on Human Rights on Civil Recovery
Pension Schemes
Civil recovery and taxation
15: The Seizure and Recovery of Cash
Introduction
The Seizure and Forfeiture of Cash
Practice and Procedure
Continued Detention Hearings: Practice
Applications for Forfeiture of Detained Cash
The Hearing
Rules of Evidence
Costs and Compensation
Appeals
Searches and Seizure of Cash
Compatibility of the Forfeiture Provisions with the ECHR
Detention and Forfeiture of Terrorist Cash
The Control of Cash (Penalties) Regulations
16: Third Parties
Introduction
Restraint Orders
Confiscation Orders
Specific Third Party Claims
Conclusion
17: Investigations
Introduction
A Short History of the Legislative Provisions
Defining Investigations
Courts and Judges having Jurisdiction to Make Orders
Production Orders
Search and Seizure Warrants
Judicial Discretion
Overseas Investigations
Customer Information Orders
Account Monitoring Orders
Disclosure
Statements Made in Response to Orders
Code of Practice
Financial Reporting Orders under the Serious Organised Crime and Police Act 2005
18: Appeals
Introduction
Restraint Order Appeals: Practice and Procedure
Receivership Order Appeals: Practice and Procedure
Confiscation Order Appeals: Practice and Procedure
The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003
Appeals against Forfeiture Orders
Appeals under Part 6 of POCA: Revenue Functions
The Criminal Cases Review Commission
Appeals against Findings of Contempt of Court
Thumbnail Guide to the Appeal Provisions within the Criminal Procedure Rules
CJA and DTA Appeals
19: The International Element
Introduction
International Assistance under the DTA and CJA
Co-operation under POCA
Enforcement of POCA Confiscation Orders in Different Parts of the UK
20: Money Laundering
Introduction
Money Laundering under the Proceeds of Crime Act 2002
The EC Money Laundering Directives
21: Disclosure of Suspicious Transactions
Introduction
Disclosure of Suspicious Transactions under POCA
Professional Legal Advisers
Suspicious Activity Reports: 'SARS'
Tipping Off
22: Costs, Funding Issues, and Compensation
Introduction
The Magistrates' Court and Costs
The Crown Court and Costs
Receivership Costs
Costs: High Court / Civil Cases
Legal Expenses and Legal Funding
Compensation
23: Condemnation and Restoration
Introduction
The Condemnation and Forfeiture of Goods
Detention, Seizure and Condemnation
Condemnation: Practice and Procedure
Condemnation: Costs and Compensation
Condemnation Appeals
Condemnation in the High Court
Condemnation and the ECHR
Useful Resources
Red Diesel Cases
Delivery Up
Restoration
Restoration: Practice and Procedure
Restoration Appeals
Restoration: Costs and Compensation
The ECHR and Restoration
Useful Resources
Appendix 1: Confiscation Orders - Proceeds of Crime Act 2002 sections 6-18 (as amended)
Appendix 2: Restraint orders - Proceeds of Crime Act 2002 sections 40-42 (as amended)
Appendix 3: Receivers - Proceeds of Crime Act 2002 sections 48-51 (as amended)
Appendix 4: The legislative steer - Proceeds of Crime Act 2002 section 69 (as amended)
Appendix 5: Cash seizures - Proceeds of Crime Act 2002 sections 294-303A (as amended)
Appendix 6: Powers of Interim Receiver and Administrator - Proceeds of Crime Act 2002 Schedule 6
Appendix 7: Proceeds of Crime Act Restraint Order
Appendix 8: Management Receivership Order
Appendix 9: Enforcement Receivership Order
Appendix 10: Letter of Agreement between Prosecutor and Receiver
Appendix 11: Variation of Restraint Order
Appendix 12: Certificate of Inadequacy
Appendix 13: Extract from Practice Direction on the Proceeds of Crime Act 2002 - Section III, Civil Recovery
Appendix 14: Extract from Practice Direction on the Proceeds of Crime Act 2002 Parts 5 and 8 - Section IV, Civil Recovery
Appendix 15: Interim receiving order under section 246 of the Proceeds of Crime Act 2002
Appendix 16: Property Freezing Order
Appendix 17: Civil Recovery Order
Appendix 18: Financial Reporting Order
Appendix 19: Condemnation and Forfeiture of Goods - Schedule 3 of the Customs and Excise Management Act 1979