Millington and Sutherland Williams on the Proceeds of Crime

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