Syedur Rahman and Nicola Sharp examine the changes likely

when the Criminal Finances Bill becomes law.

The authorities have often found it difficult to seize and

forfeit assets that they suspect to be the proceeds of crime.

Seizing cash, however, has not been too problematic. Under

the Proceeds of Crime Act 2002 (POCA), law enforcement agencies have had the

power to seize money if they have reasonable grounds for suspecting that it is

the proceeds of crime.

It is a power that the authorities have been able to use

extensively; leading to it even being described as draconian by some critics.

Certainly, anyone faced with having their money seized can face huge

difficulties in holding on to it.

Assets

The problems that have been encountered by the authorities

regarding seizure and forfeiture have come when any suspected proceeds of crime

have been turned into assets other than cash. Existing law gave the authorities

few options other than to go after the money.

This problem faced by the authorities, however, now looks

set to disappear. The Criminal Finances Bill 2017 gives the authorities the ability

to locate, seize and forfeit valuable items other than cash. A whole new range

of assets could be the subject of seizure or forfeiture if the Bill, as

expected, becomes law.

Gems and precious metals, items of jewellery and watches,

works of art and items that represent monetary value, such as gift vouchers and

even gambling chips, could all be seized or forfeited if the Bill passes

through Parliament. The authorities have convinced the law makers that such

items should all be considered moveable assets: objects that someone buys with

the cash proceeds of crime in order to disguise and relocate their criminal

income.

Under the terms of

the Bill, any such items that are subject to seizure must have a value of

£1,000 or more. As with current cash seizures, any attempt to seize such items

must be subject to oversight by the courts and the authorities will have to

show that they have reasonable grounds to suspect that the items are the

proceeds of crime.

Complex

One major issue that the authorities may have to overcome

when looking to seize such items is the question of ownership. With cash

seizures, the process of linking the money to the person can be relatively

straightforward.

When it comes to other assets, issues such as establishing a

person’s ownership and complications regarding joint or third party ownership

can make it more difficult to establish a link between that property and

alleged criminal activity.

This has been acknowledged by the Bill: it states that if

someone has a lawful, legitimate interest in the property that is the subject

of an attempted seizure, the

seizing authority could possibly find themselves in a position whereby they

could have to pay the third party for their stake in the asset. But

while, on paper, this seems a logical approach, this principle will surely be

immensely difficult to apply. Reaching agreement on the amount a person should

be compensated for their stake in a seized item could prove a lengthy legal

exercise in its own right.

Such problems could, arguably, dissuade the authorities from

pursuing any seizure where there is possible third party involvement.

Bank Accounts

The Bill also gives the authorities greater civil recovery

powers regarding the freezing of bank accounts. They can currently be frozen by courts at the request of the likes of the Serious

Fraud Office (SFO), Crown Prosecution Service (CPS) and the National Crime

Agency (NCA).

Under the terms of the Bill, the minimum amount that can be

subject to freezing is £1,000. In addition, HM Revenue and Customs (HMRC) and

the Financial Conduct Authority (FCA) will join the SFO, CPA and NCA in being able to request that courts freeze bank accounts.

UWO’s

Going hand in hand with the ability to freeze bank accounts

is the Bill’s introduction of unexplained wealth orders (UWO’s). Imposing a UWO

on someone who cannot provide proof that they obtained their assets legally is

a huge step when it comes to seizure.

A UWO requires a person to explain the source of the wealth

that enabled them to have, for example, a million pound in the bank or a

handful of expensive properties. Failing to respond to the Order or giving an

inadequate response to it will see the authorities use existing POCA civil

recovery procedures to take those assets off the person.

An important point to note here is that neither criminal nor

civil proceedings need to have started for a UWO to be put in place. For a UWO

to be brought, it is merely enough for the authorities to have reasonable

grounds to suspect an individual is involved in serious crime.

Such measures are the reason why the Bill is being viewed as

a major boost to the authorities’ powers when it comes to seizure and

forfeiture.