Proceeds of Crime Act 2002

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Proceeds of Crime Act 2002
Act of Parliament
Royal Coat of Arms of the United Kingdom (HM Government).svg
Long title An Act to establish the Assets Recovery Agency and make provision about the appointment of its Director and his functions (including Revenue functions), to provide for confiscation orders in relation to persons who benefit from criminal conduct and for restraint orders to prohibit dealing with property, to allow the recovery of property which is or represents property obtained through unlawful conduct or which is intended to be used in unlawful conduct, to make provision about money laundering, to make provision about investigations relating to benefit from criminal conduct or to property which is or represents property obtained through unlawful conduct or to money laundering, to make provision to give effect to overseas requests and orders made where property is found or believed to be obtained through criminal conduct, and for connected purposes.
Citation 2002 c. 29
Introduced by David Blunkett (Home Secretary) (Commons)
Baroness Scotland QC (Lords)
Territorial extentEngland and Wales; Scotland; Northern Ireland
Dates
Royal assent 24 July 2002 [1]
Commencement 24 March 2003 [2]
Other legislation
Repeals Drug Trafficking Act 1994 ss.1-54; Proceeds of Crime Act 1995 ss.1-13; Crime and Disorder Act 1998 s.83 [3]
Amended by Serious Crime Act 2007
Relates to Serious Organised Crime and Police Act 2005, Serious Crime Act 2015
Status: Amended
Records of Parliamentary debate relating to the statute from Hansard, at TheyWorkForYou
Text of statute as originally enacted
Text of the Proceeds of Crime Act 2002 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.

The Proceeds of Crime Act 2002 (c.29) (POCA) is an Act of the Parliament of the United Kingdom which provides for the confiscation or civil recovery of the proceeds from crime and contains the principal money laundering legislation in the UK.

Contents

Background

The act was enacted following the publication on 14 June 2000 of new government policy as set out in the Performance and Innovation Unit's report "Recovering the Proceeds of Crime". It deals with a wide range of matters relevant to UK law on proceeds of crime issues. These include confiscation orders against convicted individuals (requiring payment to the State based upon the benefit obtained from their crimes), civil recovery of proceeds of crime from unconvicted individuals, taxation of profits generated from crime, UK anti-money laundering legislation, powers of investigation into suspected proceeds of crime offences, and international co-operation by UK law enforcement agencies against money laundering.

The Act has been amended since 2002, most particularly by the Serious Organised Crime and Police Act 2005, the Serious Crime Act 2007 and the Serious Crime Act 2015.

The money laundering provisions in Part 7 of the Act are supported by the UK Money Laundering Regulations 2007. [4]

Amongst other things, the 2002 Act simplified the conviction of criminals suspected of money laundering because prior to it being enacted prosecutors had to work with two different statutory regimes: the Drug Trafficking Act 1994 for laundering of the proceeds of drug trafficking, and the Criminal Justice Act 1988 as amended by the Criminal Justice Act 1993 and the Proceeds of Crime Act 1995 for proceeds of other crimes. In essence prior to the implementation of the 2002 Act a prosecuting lawyer had to prove that the monies or assets were the proceeds of crime and also what 'type' of crime the proceeds came from (i.e. either drug crime or non-drug crime). The 2002 Act removed the need to make a distinction between these types as the source of the proceeds in relation to alleged money laundering in the UK commencing after 24 February 2003. [5]

The Assets Recovery Agency created by the 2002 Act became part of the Serious Organised Crime Agency [6] in March 2008. In turn SOCA became part of a new National Crime Agency for the UK in 2013.

The Act is split into 12 parts. Some of these parts apply to the entire UK (such as Part 7 dealing with money laundering), although other parts apply only to one jurisdiction within the UK (so Part 2 relates to confiscation in England & Wales, Part 3 relates to confiscation in Scotland, Part 4 relates to confiscation in Northern Ireland).

The first act of Parliament for England and Wales aimed at stripping criminals of illegally acquired gains was the Drug Trafficking Offences Act 1986. Scotland was provided with similar powers under the Criminal Justice (Scotland) Act 1987. These acts of Parliament were introduced following the House of Lords ruling that under the law as it then was some £750,000 had to be returned to a gang of drug dealers. These proceeds had been traced to the defendants in a police operation codenamed "Operation Julie" in 1978. Powers for the courts to confiscate proceeds of crime were extended under the Criminal Justice Act 1988 and the Criminal Justice (Scotland) Act 1995. These Acts provided the courts with powers to confiscate proceeds of crime where an offence had been committed other than drug trafficking offences, in specified circumstances. Powers for the courts in Northern Ireland to confiscate proceeds in both drug trafficking and other offences was introduced by Criminal Justice (Confiscation) (Northern Ireland) Order 1990. These acts were amended by: Criminal Justice Act 1993, the Drug Trafficking Act 1994, the Proceeds of Crime Act 1995, the Proceeds of Crime (Scotland) Act 1995 and the Proceeds of Crime (Northern Ireland) Order 1996.

Passage of the Bill

The Proceeds of Crime Bill was introduced to the House of Commons by the Home Secretary, David Blunkett, on 18 October 2001. [7] It was given Royal Assent on 24 July 2002. [1]

Provisions of the Act

Part 1

Sections 1  5 of the Act provides for the establishment of the Assets Recovery Agency and for the Secretary of State to appoint its Director. The section gives the Director power to employ staff and delegate his function to staff to carry out his role. The office of Director has legal personality representing the agency as a whole in much the same manner as the office of Chief Constable or Responsible Minister for their respective public bodies, and would therefore be named as a party in any legal case involving the department e.g. Stoner v Director of the Assets Recovery Agency. The section makes it clear that Director must pay attention to guidance given by the Secretary of State which is calculated to contribute to the reduction of crime. The Assets Recovery Agency was provided with completely new powers by the Proceeds of Crime Act 2002. The new powers allow the Assets Recovery Agency to use the civil court procedures to recover the proceeds of unlawful conduct by way of an action in the High Court. Where there are reasonable grounds to suspect there is taxable income gain or profit the Agency also has the power to issue tax assessments.

The Assets Recovery Agency created by the 2002 Act became part of the Serious Organised Crime Agency [6] in 2008. In turn SOCA became part of the National Crime Agency for the UK in 2013.

Parts 2, 3 & 4

Part 2, sections 6  91, deals with the transfer of power to make confiscation orders from the Magistrates Court and High Court to the Crown Court. Applications for Restraint Orders or Charging Orders are heard in the Crown Court. The Magistrates Court must commit confiscation cases to the Crown Court. These changes apply to offences committed after the commencement of this part of the Act on 23 March 2003. Confiscation or restraint proceedings for offences committed before 23 March 2003 would be dealt with under the regimes outlined in either the Drug Trafficking Act 1994 or Criminal Justice Act 1988. For offences committed over a period of time, which is typically the case where an acquisitive fraud has been committed, then the relevant date is the start date of the offence. [8] Legislation has now been passed by parliament which would allow the magistrates court to deal with confiscation cases which have a value of up to £10,000. [9] However, this has yet to be implemented.

In essence a confiscation order is an order of the Crown Court requiring the convicted defendant to pay to the State a specified sum of money by a specified date (no later than 12 months after the date on which the order is made [10] reduced to 6 months with effect from 1 June 2015 [11] ). The Crown Court is obliged to make a confiscation order if requested to do so by the prosecutor following the conviction of the defendant of an offence from which he has obtained a benefit. [12]

The Crown Court must normally establish (i) the benefit obtained by the defendant and (ii) the defendant's available amount. The confiscation order must then be made in the recoverable amount which is the lesser of these two figures. [13] The Act provides rules for the determination both of the benefit obtained and the defendant's available amount. In relation to benefit the court is obliged to apply the statutory assumptions set out in section 10 if the defendant has a criminal lifestyle. A defendant has a criminal lifestyle if, and only if, he meets the criteria of section 75. A criminal lifestyle may be established by the conviction of the defendant of a single offence. [14]

The defendant's available amount is typically the market value of all his assets less the amount of any liabilities which are secured upon those assets. [15] Unsecured liabilities are not deducted in arriving at the defendant's available amount.

If the court is unable to establish the defendant's available amount it must make a confiscation order in the amount of the benefit. [13]

The burden falls broadly upon the prosecution to establish the defendant's benefit and upon the defendant to establish his available amount. In practice the prosecutor will in the first instance attempt to assist the court to establish both figures.

If the defendant fails to pay the sum ordered by the due date then payment may be enforced by various means and interest will commence to run on the amount unpaid. [16] One of the means of enforcement is that an additional prison sentence (maximum 10 years 14 years, with effect from 1 June 2015) may be imposed for failure to pay on time. [17]

Part 2 also includes provisions relating to the making of restraint orders and the appointment of enforcement receivers. [18] Restraint orders are draconian in nature and the jurisdiction is unfamiliar to the Crown Court and to many criminal practitioners having previously been exercised by the High Court. However, such orders may be challenged to considerable effect as the case of Windsor v Crown Prosecution Service demonstrates.

Part 2 of the Act applies in England and Wales. Parts 3 & 4 of the Act apply similar provisions to Scotland and Northern Ireland but in a modified form to suit the different legal traditions and structures in those jurisdictions.

However, although the statute law is very similar, the operation of confiscation in practice in Scotland in 'criminal lifestyle' cases  particularly in relation to the computation of the offender's 'benefit' for confiscation purposes  has been very different from that in England and Wales. [19]

Part 5

Part 5 of the Act deals with the civil recovery of the proceeds of crime from unconvicted defendants through proceedings in the civil courts (the High Court or, in Scotland, Court of Session).

It includes powers relating to the seizure, detention and forfeiture of cash sums [20] in excess of the 'minimum amount' [21] (currently £1,000). [22] In this context cash is widely defined to include not only banknotes and coins of any currency but also cheques, including travellers' cheques and bank drafts. [23] These proceedings are held in the Magistrates' Court or (in Scotland) before the Sheriff.

Part 5 applies throughout the UK.

Part 6

Part 6 relates to taxation powers where it is suspected that profits or gains have arisen as a result of criminal activities.

When the Serious Organised Crime Agency has reasonable grounds to suspect that taxable income or chargeable gains have arisen to a person in one or more tax years as a result (wholly or partly and directly or indirectly) of criminal conduct (whether conduct by that person or by another) they may adopt taxation powers in respect of that person for those tax year(s) under Part 6. Having adopted those powers they (in addition to HM Revenue and Customs) may issue tax assessments (covering both legitimate and illegitimate income and gains). [24]

The tax assessments are subject to appeal in the same way as tax assessments issued by HM Revenue and Customs except that it is not necessary for tax assessments made under Part 6 to specify the source of the income or gains assessed. [25] Appeal is to the First-tier Tribunal (Tax Chamber).

An appeal can also be made on the grounds that the adoption of taxation powers by SOCA was invalid in the appellant's case.

Part 6 applies throughout the UK.

Part 7

Part 7 of the Act contains the primary UK anti-money laundering legislation, [26] including provisions requiring businesses within the 'regulated sector' (banking, investment, money transmission, certain professions, etc.) to report to the authorities suspicions of money laundering by customers or others. [27]

Money laundering is widely defined in the UK. [28] In effect any handling or involvement with any proceeds of any crime (or monies or assets representing the proceeds of crime) can be a money laundering offence. An offender's possession of the proceeds of his own crime falls within the UK definition of money laundering. [29] The definition also covers activities which would fall within the traditional definition of money laundering as a process by which proceeds of crime are concealed or disguised so that they may be made to appear to be of legitimate origin. [30]

Unlike certain other jurisdictions (notably the US and much of Europe), UK money laundering offences are not limited to the proceeds of serious crimes, nor are there any monetary limits, nor is there any necessity for there to be a money laundering design or purpose to an action for it to amount to a money laundering offence. A money laundering offence under UK legislation need not involve money, since the money laundering legislation covers assets of any description. Technically therefore an individual who steals even a paper clip in the UK commits a money laundering offence (possession of the stolen paper clip) in addition to the predicate offence (of theft of the paper clip).

In consequence any person who commits an acquisitive crime (i.e. one from which he obtains some benefit in the form of money or an asset of any description) in the UK will inevitably also commit a money laundering offence under UK legislation.

This applies also to a person who, by criminal conduct, evades a liability (such as a taxation liability)  referred to by lawyers as "obtaining a pecuniary advantage"  as he is deemed thereby to obtain a sum of money equal in value to the liability evaded. [28]

The principal money laundering offences carry a maximum penalty of 14 years imprisonment. [31]

One consequence of the Act is that banks, as well as professional firms such as solicitors, accountants, and insolvency practitioners, who suspect (as a consequence of information received in the course of their work) that their customers or clients (or others) have engaged in tax evasion or other criminal conduct from which a benefit has been obtained, are now required to report their suspicions to the authorities (since these entail suspicions of money laundering). In most circumstances it would be an offence, 'tipping-off', for the reporter to inform the subject of his report that a report has been made. [32] These provisions do not however require disclosure to the authorities of information received by certain professionals in privileged circumstances or where the information is subject to legal professional privilege.

There is however, under UK legislation, no obligation upon banks or others to routinely report all deposits or transfers having a value greater than a specified amount even in the absence of any suspicion that money laundering may be involved (as there is in some other countries).

The reporting obligations in Part 7 include reporting suspicions relating to gains from conduct carried out abroad which would be criminal if it took place in the UK. [33] Exceptions were later added to exempt certain activities which were legal in the location where they took place, such as bullfighting in Spain. [34]

There are more than 200,000 reports of suspected money laundering submitted annually to the authorities in the UK (there were 240,582 reports in the year ended 30 September 2010  an increase from the 228,834 reports submitted in the previous year [35] ). Most of these reports are submitted by banks and similar financial institutions (there were 186,897 reports from the banking sector in the year ended 30 September 2010 [36] ).

Although 5,108 different organisations submitted suspicious activity reports to SOCA in the year ended 30 September 2010 just four organisations submitted approximately half of all reports, and the top 20 reporting organisations accounted for three-quarters of all reports. [37]

The offence of failing to report a suspicion of money laundering by another person carries a maximum penalty of 5 years imprisonment and/or a fine. [38]

Part 7 applies throughout the UK.

The person in a company responsible for receiving employees' reports of their suspicions and ensuring that, when appropriate, the information or other matter leading to knowledge or suspicion, or reasonable grounds for knowledge or suspicion, of money laundering is properly disclosed to the relevant authority is referred to in the legislation as the "nominated officer" but in practice is more commonly known as the Money laundering reporting officer (MLRO). [39]

Parts 8  12

Parts 8 to 12 of the Act make further provisions with regard to investigation of suspected offences, international co-operation, etc.

Importantly it is a criminal offence to impede a money laundering investigation by the authorities by the concealing, destroying or falsifying of documents relevant to the investigation or by the making of a disclosure of information which prejudices the investigation. [40] The offence carries a maximum punishment of 5 years imprisonment.

Related Research Articles

Money laundering Process of transforming profits of crime and corruption into ostensibly legitimate assets

Money laundering is the illegal process of concealing the origins of money obtained illegally by passing it through a complex sequence of banking transfers or commercial transactions. The overall scheme of this process returns the "clean" money to the launderer in an obscure and indirect way.

Racketeer Influenced and Corrupt Organizations Act U.S. law

The Racketeer Influenced and Corrupt Organizations (RICO) Act is a United States federal law that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization. The RICO Act focuses specifically on racketeering and allows the leaders of a syndicate to be tried for the crimes they ordered others to do or assisted them in doing, closing a perceived loophole. For example, before RICO, a person who instructed someone else to murder could be exempt from prosecution because they did not personally commit the crime.

Serious Organised Crime Agency Non-departmental public body of the UK government from 2006-13

The Serious Organised Crime Agency (SOCA) was a non-departmental public body of the Government of the United Kingdom which existed from 1 April 2006 until 7 October 2013. SOCA was a national law enforcement agency with Home Office sponsorship, established as a body corporate under Section 1 of the Serious Organised Crime and Police Act 2005. It operated within the United Kingdom and collaborated with many foreign law enforcement and intelligence agencies.

Confiscation is a legal form of seizure by a government or other public authority. The word is also used, popularly, of spoliation under legal forms, or of any seizure of property as punishment or in enforcement of the law.

Assets Recovery Agency Former non-ministerial government department in the United Kingdom

The Assets Recovery Agency (ARA) was a non-ministerial government department in the United Kingdom. It was established under the Proceeds of Crime Act 2002 (POCA) to reduce crime by confiscating the proceeds of any crime. It was granted a new power of civil recovery through the High Court, and could also take over the powers of the HM Revenue and Customs (HMRC) to levy tax without identifying a source for taxed income.

Criminal Assets Bureau

The Criminal Assets Bureau (CAB) is a law enforcement agency in Ireland. The CAB was established with powers to focus on the illegally acquired assets of criminals involved in serious crime. The aims of the CAB are to identify the criminally acquired assets of persons and to take the appropriate action to deny such people of these assets.CAB recently took down one of their biggest targets to date, Marc Brogan ( a well known cattle haulier and the head of a smuggling ring with links to the Hughes bros and Morgan Mclernon. This action is taken particularly through the application of the Proceeds of Crime Act 1996. The CAB was established as a body corporate with perpetual succession in 1996 and is founded on the multi-agency concept, drawing together law enforcement officers, tax officials, social welfare officials as well as other specialist officers including legal officers, forensic analysts and financial analysts. This multi-agency concept is regarded by some as the model for other European jurisdictions.

Civil recovery is the method in some legal systems employed to recover the proceeds of crime, instead of, or in addition to, criminal.

Australian Transaction Reports and Analysis Centre (AUSTRAC) is an Australian government financial intelligence agency set up to monitor financial transactions to identify money laundering, organised crime, tax evasion, welfare fraud and terrorism financing. AUSTRAC was established in 1989 under the Financial Transaction Reports Act 1988. It implements in Australia the recommendations of the Financial Action Task Force on Money Laundering (FATF), which Australia joined in 1990.

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Prevention of Money Laundering Act, 2002

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International asset recovery

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National Crime Agency National law enforcement agency in the United Kingdom

The National Crime Agency (NCA) is a national law enforcement agency in the United Kingdom. It is the UK's lead agency against organised crime; human, weapon and drug trafficking; cyber crime; and economic crime that goes across regional and international borders, but can be tasked to investigate any crime. The NCA has a strategic role in which it looks at the bigger picture across the UK, analysing how criminals are operating and how they can be disrupted. To do this it works closely with regional organised crime units (ROCUs), the Serious Fraud Office, as well as individual police forces.

A restraint order is an order which has the effect of freezing the assets and bank accounts of the persons against whom it is directed, in consequence of a belief by the authorities that some crime has been committed from which a person has benefited financially.

CETS141

The Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, also known as the Strasbourg Convention or CETS 141, is a Council of Europe convention which aims to facilitate international co-operation and mutual assistance in investigating crime and tracking down, seizing and confiscating the proceeds thereof. The Convention is intended to assist States in attaining a similar degree of efficiency even in the absence of full legislative harmony.

An unexplained wealth order (UWO) is a type of court order issued by a British court to compel the target to reveal the sources of their unexplained wealth. UWOs were introduced by sections 1–2 of the Criminal Finances Act 2017 and are governed by sections 362A–362T of Part 8 of the Proceeds of Crime Act 2002. Persons who fail to account are liable to have assets seized after an enforcement authority, such as the National Crime Agency (NCA), makes a successful appeal to the High Court.

References

  1. 1 2 "House of Commons Hansard; vol 389, part 185, col 1080". Hansard . Parliament of the United Kingdom. 24 July 2002. Retrieved 1 October 2008.CS1 maint: discouraged parameter (link)
  2. =SI 2003/333
  3. Proceeds of Crime Act 2002 s.457; Sch.12
  4. "OPSI: Money Laundering Regulations 2007" . Retrieved 14 February 2009.CS1 maint: discouraged parameter (link)
  5. The Proceeds of Crime Act 2002 (Commencement No. 4, Transitional Provisions and Savings) Order 2003
  6. 1 2 Section 74, Serious Crime Act 2007
  7. "House of Commons Hansard; vol 372, part 33, col 1325". Hansard . Parliament of the United Kingdom. 18 October 2001. Retrieved 1 October 2008.CS1 maint: discouraged parameter (link)
  8. The Proceeds of Crime Act 2002 (Commencement No. 5, Transitional Provisions and Savings) Order 2003
  9. Section 97, Serious Organised Crime and Police Act 2005
  10. Section 11, Proceeds of Crime Act 2002
  11. Section 5, Serious Crime Act 2015
  12. Section 6, Proceeds of Crime Act 2002
  13. 1 2 Section 7, Proceeds of Crime Act 2002
  14. Section 75 and Schedule 2, Proceeds of Crime Act 2002
  15. Section 9, Proceeds of Crime Act 2002
  16. Section 12, Proceeds of Crime Act 2002
  17. Section 130, Powers of Criminal Courts (Sentencing) Act 2000
  18. Sections 40  74, Proceeds of Crime Act 2002
  19. David Winch, "Confiscation contrasts  England v Scotland" (2008)
  20. Sections 289  316, Proceeds of Crime Act 2002
  21. Section 303, Proceeds of Crime Act 2002
  22. The Proceeds of Crime Act 2002 (Recovery of Cash in Summary Proceedings: Minimum Amount) Order 2006
  23. Section 289, Proceeds of Crime Act 2002
  24. Section 317, Proceeds of Crime Act 2002
  25. Section 319, Proceeds of Crime Act 2002
  26. Sections 327  340, Proceeds of Crime Act 2002
  27. Section 330, Proceeds of Crime Act 2002
  28. 1 2 Section 340, Proceeds of Crime Act 2002
  29. Section 329, Proceeds of Crime Act 2002
  30. Section 327, Proceeds of Crime Act 2002
  31. Section 334, Proceeds of Crime Act 2002
  32. Section 333A, Proceeds of Crime Act 2002
  33. Section 340(2), Proceeds of Crime Act 2002
  34. David Winch, "Money Laundering Law Changes" Archived 7 July 2011 at the Wayback Machine (2006)
  35. 'The Suspicious Activity Reports Regime Annual Report 2010 published by SOCA
  36. 'The Suspicious Activity Reports Regime Annual Report 2010 published by SOCA
  37. 'The Suspicious Activity Reports Regime Annual Report 2010 published by SOCA
  38. Section 334, Proceeds of Crime Act 2002
  39. "Money laundering reporting officers". MyLawyer. Retrieved 5 April 2016.CS1 maint: discouraged parameter (link)
  40. Section 342, Proceeds of Crime Act 2002