The Criminal Finances Act 2017 (CFA) and Section 5 of the Proceeds of Crime Act 2002 (POCA) have significantly changed the way how Law Enforcement Agencies (LEA) now approach the confiscation of assets. Section 5 of POCA 2002 means that LEAs are no longer reliant upon having to secure a conviction first and are now increasingly use civil recovery powers.
This means that LEAs can apply to the High Court and/or Magistrates for Orders and only have to show that on the ‘balance of probabilities’ that the assets are proceeds of crime. This burden of proof is far less than in criminal matters where the prosecution has to prove their case beyond a reasonable doubt.
What does the balance of probability mean?
In a family case (Re B [2008] UKHL 35), Lord Hoffman answered that question as follows:
“If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof falls to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”
What does beyond all reasonable doubt means?
In criminal matters heard at a criminal court, the prosecution typically bears the burden of proof and is required to prove its case beyond a reasonable doubt. This means that in order for a defendant to be found guilty the case presented by the prosecution must be enough to remove any reasonable doubt in the mind of the magistrate or jury (at a crown court) that the defendant is guilty of the crime with which they are charged.
Using Civil Recovery Powers LEAs are able to apply for the following type of orders;
Unexplained Wealth Orders (UWOs) which are new and contained within CFA 2017. This places an onus on the respondent to explain how they obtained the asset and if they can not provide an explanation then the asset may be regarded as recoverable property and then likely to become subject of a civil recovery order from the High Court.
Account Freezing Orders (AFROs) and introduced by the CFA 2017 (s.16 Part 5 POCA) means that bank and building society accounts can be frozen. Applications for AFROs are made in the Magistrates Court if there are reasonable grounds to suspect monies in the account are ‘recoverable property (property recovered through unlawful conduct s.304 POCA 2002)’ or ‘intended by any person for use in unlawful conduct’. AFROs apply to a minimum balance of £1000, are made without notice and last for a 2-year period.
Account Forfeiture Orders (AFOOs) means that LEA’s (the Police) can serve an account forfeiture notice on a person and depending on whether it is contested it will be heard by the court.
Property Freezing Orders (PFOs) applies to all property (cash or tangible) that is obtained through unlawful conduct or represents such property, whether here in the U.K or anywhere in the world with the alleged crimes not having to have been committed in the U.K.
The increasing use of civil recovery orders is simpler, quicker and more effective for law enforcement.
Connaught Law has the speed, experience and expertise to take immediate action, whether to legally contest or to engage with authorities to reach amicable settlements through structured negotiations.
Disclaimer:
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.
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