PROCEEDS OF CRIME

[2020] UKSC 29
[2020] UKSC 29
SC (NI) (Lord Kerr JSC, Lord Wilson JSC, Lord Lloyd-Jones JSC, Lord Briggs JSC, Lady Arden JSC)
1 July 2020

The Supreme Court explained the purpose and operation of the Proceeds of Crime Act 2002 s.160A, which concerned a defendant’s interests in property where a confiscation order was being made. There were potentially two stages to confiscation proceedings, namely the making of the order and its enforcement, and s.160A was intended to combine them into one for simple cases. However, in more complex cases, particularly where property was jointly owned, the two-stage process could still occur and third party property interests could arise for consideration at the enforcement stage.

[2020] UKPC 15
[2020] UKPC 15
PC (Lord Kerr, Lord Hodge, Lord Lloyd-Jones, Lord Briggs, Lord Sales)
8 June 2020

The court examined the operation of the regime in the Money Laundering (Prevention) Act 1996 (Antigua and Barbuda) Pt IV headed “Freezing and Forfeiture of Assets in Relation to Money Laundering” and the regime in Pt IVB headed “Civil Forfeiture”. It analysed the effect of the Constitution of Antigua and Barbuda on those regimes. The Act’s freeze order and civil forfeiture provisions were intended to operate in combination as an integrated regime and they did so in the civil rather than the criminal sphere. The practical effect of a finding that a defendant had engaged in money laundering was to place the burden on them to show to the civil standard that any property they owned had been acquired by legitimate means and sources of funding. That was reasonable and did not amount to charging the defendant with a criminal offence within the meaning of section 15 of the Constitution. The regime was proportionate and compatible with the Constitution.

[2020] EWHC 963 (Ch)
[2020] EWHC 963 (Ch)
Ch D (Deputy Judge Schaffer)
18 March 2020

The National Crime Agency had standing to present winding-up petitions in respect of two companies, where it met the test in the Proceeds of Crime Act 2002 s.317 of having reasonable grounds to suspect criminal conduct. The assessments to corporation tax which formed the petition debts had not been appealed, therefore they clearly stood as statutory debts and it was not for the instant court to take any contrary position on the face of the tax liability.

[2020] EWHC 496 (Admin)
[2020] EWHC 496 (Admin)
QBD (Admin) (Freedman J)
6 March 2020

In a case concerning a confiscation order made under the Drug Trafficking Act 1994, an individual’s judicial review challenge to a finding that a French property in which he had an interest amounted to the proceeds of crime was bound to fail. The Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014, which applied to confiscation orders made under the 1994 Act, made clear that there was no requirement for the Crown to prove that the assets against which enforcement was made had come from the particular drugs offence.

[2020] NICh 3
[2020] NICh 3
Ch D (NI) (Simpson J)
21 February 2020

The court granted a possession order in relation to a property which had been paid for using money derived from unlawful conduct. The order did not breach the defendants’ rights under ECHR art.8, art.14 or Protocol 1 art.1. However, it was appropriate to stay the enforcement of the order for a period of six months so that the defendants’ children could remain in the property whilst taking important exams.

[2020] EWCA Civ 108
[2020] EWCA Civ 108
CA (Civ Div) (Lord Burnett LCJ, Davis LJ, Simon LJ)
5 February 2020

In refusing to discharge an unexplained wealth order made against a non-EEA national, the Court of Appeal examined the statutory test for identifying a “politically exposed person” within the meaning of the Proceeds of Crime Act 2002 s.362B(4)(a) and confirmed that a broad approach was to be taken to assessing whether an entity was a “state-owned enterprise” for the purposes of Directive 2015/849 art.3(9)(g). It confirmed that neither the privilege against self-incrimination nor spousal privilege applied to the unexplained wealth order procedure.

QBD (Admin) (Lewis J)
21 January 2020

The court made a certificate under the Drug Trafficking Act 1994 s.16(2) in relation to property inherited after a confiscation order had been made in circumstances where the original offences had been committed before March 2003 and the Supreme Court had held that s.16(2) did apply to property acquired after a confiscation order had been made.

[2019] EWHC 2563 (Admin)
[2019] EWHC 2563 (Admin)
QBD (Admin) (Gross LJ, William Davis J)
3 October 2019

A local authority had not acted ultra vires when conducting a trading standards investigation into energy brokers suspected of involvement in mis-selling. It had power to do so under the Localism Act 2011 s.1 and/or the Local Government Act 1972 s.101 and s.111. It did not have to satisfy the expediency test in s.222(1) of the 1972 Act since that test only applied to decisions to prosecute or appear in legal proceedings, and did not encompass investigations or court applications for investigatory purposes.

[2019] EWCA Civ 588
[2019] EWCA Civ 588
CA (Civ Div) (Patten LJ, Hamblen LJ, Holroyde LJ)
9 April 2019

Where a company had a proprietary claim over proceeds of fraud because they had been obtained through the unlawful use of its property by its directors, it was entitled to assert its claim in priority to a confiscation order obtained by the CPS.

[2019] EWCA Crim 501
[2019] EWCA Crim 501
CA (Crim Div) (Davis LJ, William Davis J, Judge Potter)
26 March 2019

The Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 were to be read purposively so as to give effect to Framework Decision 2006/783 on the application of the principle of mutual recognition to confiscation orders. The Regulations could be applied to confiscation orders made before their coming into effect unless it would cause real unfairness to do so. Confiscation orders could extend to property which did not directly represent the proceeds of crime where the defendant had benefited from general criminal conduct.

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