Proceeds of Crime and Asset Recovery

21 February 2007

A Proceeds of Crime Legislative History

1978

Operation Julie R v Cuthbertson Conspiracy to produce LSD Forfeiture Order - s 27 Misuse of Drugs Act

1971 Cash, cars, paintings, bank accounts in

Switzerland and France, a debt owed to a defendant

Forfeiture order upheld by Court of Appeal

1981

R v Cutherbertson House of Lords : Conspiracy not an offence under 1971 Act S 27 - No extraterritorial effect S 27 - No enforcement machinery S 27 - No Parliamentary intention for orders

against drug trafficking profits Allowed appeal against forfeiture order

1984

Hodgson Committee recommendationsConfiscation powersPrescribed minimum but no maximumAvailable in Crown Courts onlyMagistrates to have power to commit for

confiscation

1985

Home Affairs Select Committee“Misuse of Hard Drugs – Interim

Report”Approved US policy of giving courts

“draconian powers” to remove proceeds of drug trafficking

1986

Drug Trafficking Offences Act 1986First E&W confiscation legislationLimited to drug trafficking casesDiscretionary statutory assumptions

1988

UN Vienna Convention Criminal Justice Act 1988

Extended confiscation to non-drugs cases

No statutory assumptions in non-drugs cases

1989

Creation of Financial Action Task Force by G7Purpose : the development and

promotion of national and international policies to combat money laundering

40 RecommendationsMutual evaluationsBlacklist – NCCT’s

1990

Criminal Justice International Co-operation Act 1990 Introduction of cash forfeiture system Amendments to DTOA 1986 Allowed UK to ratify Vienna Convention

Criminal Justice (Confiscation) (NI) Order 1990 First NI confiscation legislation Discretionary statutory assumptions in drugs cases No statutory assumptions in non-drugs cases

Strasbourg Convention on Laundering, Search, Seizure and Confiscation

1991

Home Office Working Group on ConfiscationFirst reportRecommended amendments to DTOA

1986

1993

Criminal Justice Act 1993Created drug money laundering

offencesAmended DTOA 1986 and CJCNIO

1990Most amendments not brought into

force

1994

Drug Trafficking Act 1994Consolidation of drugs related

confiscation and forfeiture provisionsMandatory statutory assumptions for

drugs cases

1995

Proceeds of Crime Act 1995More strengthening amendmentsDiscretionary statutory assumptions in

non-drugs cases

1996

Proceeds of Crime (NI) Order 1996Replaced the 1990 OrderIntroduced mandatory statutory

assumptions for drugs casesIntroduced discretionary statutory

assumptions for non-drugs cases

1997

Home Office Working Group on Confiscation – Third ReportRecommended “full” civil forfeitureRecommended National Confiscation

AgencyRecommended further amendments

to DTA 1994 and POCO 1996

2000

PIU Report “Recovering the Proceeds of Crime”

2002

Proceeds of Crime Act 2002 Creation of Assets Recovery Agency Civil recovery proceedings in High Court Taxation of suspected criminal gains Extended cash forfeiture scheme Prosecution appeals on confiscation issues Mandatory statutory assumptions if “criminal

lifestyle” Strengthened money laundering offences

2005

Serious Organised Crime and Police Act 2005Significant amendments to civil

recovery schemeMinor amendments to confiscation

scheme

2006

“Criminal Memoirs” consultation by Home OfficePossible new offence for payment to

criminals for publications about crimesPossible enlargement of civil recovery

scheme to cover publishers’ royalties

2007

Government introduces Serious Crime Bill proposing :Merger of Assets Recovery Agency

into Serious Organised Crime AgencyCivil Recovery proceedings to be

brought by prosecutorsAdditional investigation powers for

cash forfeiture investigations

Trends 1986 - 2007

Increasing international pressure to comply with norms

Less divergence between provisions in drugs and non-drugs cases

Increasing use of civil alternatives Broadening definitions of criminal proceeds Reduction in judicial discretion in

confiscation hearings

Perception

Perception

“Clean” or “Dirty” Money ?

Confiscation proceedings Civil recovery proceedings Cash forfeiture proceedings Taxation proceedings Money laundering offences

Evidence often offered to prove criminal origin of property (1)

Previous criminal convictions Criminal associates Contamination of cash Accomplice evidence Audit Trails Unlikelihood of legitimate origin Absence of commercial or domestic logic

Evidence often offered to prove criminal origin of property (2)

Expert evidence Packaging of proceeds Denomination of banknotes Lies by the defendant Inferences from silence Admissions