Proceeds of Crime Act 2002 Lee May. Proceeds of Crime Act 2002 Topics Rationale for the Legislation Overview of the Act – Confiscation Regime Application

Proceeds of Crime Act 2002Lee May

Proceeds of Crime Act 2002 Topics

Rationale for the Legislation

Overview of the Act – Confiscation Regime

Application to Planning

. . . Any Questions?

Proceeds of Crime Act 2002Rationale for the Legislation

“An Act to establish the Assets Recovery Agency and make provision about the

appointment of its Director and his functions (including Revenue functions), to provide for

confiscation orders in relation to persons who benefit from criminal conduct and for

restraint orders to prohibit dealing with property, to allow the recovery of property which is

or represents property obtained through unlawful conduct or which is intended to be used

in unlawful conduct, to make provision about money laundering, to make provision about

investigations relating to benefit from criminal conduct or to property which is or

represents property obtained through unlawful conduct or to money laundering, to make

provision to give effect to overseas requests and orders made where property is found or

believed to be obtained through criminal conduct, and for connected purposes”

Proceeds of Crime Act 2002Overview of the Act

Creation of the Assets Recovery Agency – subsequently absorbed by the Serious Organised Crime Agency

Confiscation Orders

Civil Recovery of the Proceeds of Unlawful Conduct

Money Laundering

Proceeds of Crime Act 2002Rationale for the Legislation

“The legislation is intended to deprive defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit, within the limits of their available means.”

House of Lords in R v May, Jennings v CPS and R v Green [2008]

Majority of cases involve offences of theft, dishonesty, drug dealing.

Other examples:• R v Grainger [2008] – Fraudulent trading• R v Xu [2008] - Employing illegal immigrants in a restaurant• R v Sivaraman [2009] – Selling “off road” diesel

Applicability to Planning and Environmental offences?• Regular use by the Environment Agency for waste offences; e.g.• Fly tipping• Illegal waste operations

Proceeds of Crime Act 2002The Confiscation Regime

Section 6 of the POCA 2002:

(1) The Crown Court must proceed under this section if the following two conditions are satisfied

(2) The first condition is that a defendant falls within any of the following paragraphs-(a) He is convicted of an offence or offences in proceedings before the

Crown Court; . . . (3) The second condition is that –

(a) The prosecutor asks the court to proceed under this section, or(b) The court believes that it is appropriate to do so.


Section 6 of the POCA 2002 . . . continued:

(4) The court must proceed as follows -(a) It must decide whether the defendant has a criminal lifestyle;(b) If it decides that he has a criminal lifestyle it must decide whether he

has benefited from his general criminal conduct;(c) If it decides that he does not have a criminal lifestyle it must decide

whether he has benefited from his particular criminal conduct.(5) If the court decides under subsection (4)(b) or (c) that the defendant has

benefited from the conduct referred to it must –(a) Decide the recoverable amount, and(b) Make an order (a confiscation order) requiring him to pay that amount


What is a “criminal lifestyle”?

Section 75 of the POCA 2002 . . . includes:

(c) An offence committed over a period of at least 6 months and the defendant has benefited from the conduct which constitutes the offence

What is “criminal conduct”?

Section 76(1) of the POCA 2002 – conduct which:

(a) Constitutes an offence in England and Wales


Calculating the “Recoverable Amount” - Section 7 of the POCA 2002:

(1) . . . an amount equal to the defendant’s benefit from the conduct concerned

(2) But if the defendant shows that the available amount is less than that benefit the recoverable amount is – (a) the available amount; or(b) a nominal amount if the available amount is nil

The “available amount” - Section 9 of the POCA 2002

(1) (a) total value of the values (at the time the confiscation order is made) of all the free property then held by the defendant . . .

Proceeds of Crime Act 2002Application to Planning Offences

Town and Country Planning Act 1990

• Section 179 - failure to comply with an enforcement notice• Section 194 – false or misleading statements on CLUED application• Section 210 – non-compliance with TPO

Planning (Listed Buildings and Conservation Areas) Act 1990

• Section 9 – carrying out works to a listed building without consent


Welwyn Hatfield Council v Secretary of State for Communities and Local Government [2010] EWCA Civ 26

Mr. Beesley

• Planning Permission obtained by deception• Planning appeal case – no criminal proceedings

Collins J – “. . . it may well be that any benefit he has obtained as a result from the value of the dwelling house, if it were to remain, is a value that can be removed from him under the Proceeds of Crime Act.”


R v Del Basso and Goodwin [2010] EWCA Crim 1119

s.179 Planning Act 1990

• Use of site for “park and ride” without planning permission• Notice issued – January 2003• Appeal dismissed on appeal - October 2003• High Court challenge to inspector’s decision – dismissed February 2004• Period for compliance expired – August 2004• Prosecution commenced – September 2004• Convictions obtained – November 2005• Use of site continued• Second prosecution commenced – January 2006• Guilty pleas – June 2007• Confiscation Proceedings commenced



The Park and Ride became criminally unlawful from the moment the enforcement notice became effective – i.e. August 2004

“The Recoverable Amount” - £1.88m

“The Available Amount”• Mr. Del Basso - £760,000• Mr. Goodwin – bankrupt



Judge Barker:

“They have treated the illegality of the operation as a routine business risk with financial implications in the form of potential fines, or, at worst injuncive proceedings. This may reflect a more general public impression among those confronted by enforcement notices with the decision whether to comply with the law to flout it. The law, however is plain. Those who choose to run operations in disregard of planning enforcement requirements are at risk of having the gross receipts of their illegal businesses confiscated.”

Proceeds of Crime Act 2002

Any Questions?

Documents

Proceeds of Crime Act 2002 Lee May. Proceeds of Crime Act 2002 Topics Rationale for the Legislation Overview of the Act – Confiscation Regime Application