Millington and Sutherland Williams on The Proceeds of Crime provides a definitive guide to all aspects of the law concerning the recovery of the proceeds of crime in England and Wales. It provides an easily navigable step-by-step approach that considers how the legislation is geared to ensuring that criminals do not benefit from their crimes financially, as well as detailed coverage of every stage of the confiscation process. This new edition has been fully updated to include all important legislative changes over the last three years, and covers all significant case law, including discussion on the release of restrained funds to meet legal expenses following the decisions of the Court of Appeal in Briggs-Price v RCPO and the rights of innocent spouses in the matrimonial home in Gibson v RCPO. It also covers changes in regulation and enforcement including an examination of the future of civil recovery following the abolition of the Assets Recovery Agency and the transfer of its power to the Serious Organised Crime Agency.
The new edition incorporates in-depth coverage of the relevant legislation, with analysis of the Proceeds of Crime Act 2002 and reference to case law under both the Drug Trafficking Act 1994 and the Criminal Justice Act 1988. The new edition contains carefully selected appendices, including extracts from the Proceeds of Crime Act 2002, and draft restraint, receivership and civil recovery orders.
Table of Contents
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
Trevor Millington OBE is a barrister and Senior Lawyer in the Asset Forfeiture Division of the Revenue and Customs Prosecutions Office. Since 1989 he has specialised exclusively in the law relating to the restraint and confiscation of the proceeds of crime. In 1994 he was seconded to Gibraltar where he was responsible for drafting legislation to implement the EC Money Laundering Directive. On his return he was invited to establish an asset forfeiture unit within Customs and he has since pioneered the development of that area of the law, and has featured in a great number of the leading cases within the proceeds of crime field. He has lectured and written widely on the subject and is a member of the editorial board of The Proceeds of Crime Review. He is both a member of the Fraud Advisory Panel and a committee member of the Proceeds of Crime Lawyers Association.Mark Sutherland Williams is a barrister and head of the Asset Forfeiture Group at 3 Paper Buildings. He has appeared as counsel in a number of the most significant cases that have been decided in the proceeds of crime field in recent years, including Sivaraman, Briggs-Price, Capewell, and Islam. He was the first counsel to be instructed by the Director of the Assets Recovery Agency to obtain an Interim Receivership Order and a Property Freezing Order and the first counsel to be instructed to obtain an external restraint order under SOCPA. He regularly appears in both the High Court and the Court of Appeal in specialist forfeiture, receivership, restraint, and confiscation order matters. He is the Treasurer of the Proceeds of Crime Lawyers Association, a visiting lecturer in Commercial Fraud at SOAS, and a member of the Fraud Advisory Panel.