Civil recovery
Section 62 Limitation
320.Section 62 provides for the limitation period for actions for the civil recovery of property obtained through unlawful conduct under Chapter 2 of Part 5 of POCA to be extended from 12 years to 20 years by amendment of section 27A(2) of the Limitation Act 1980 which applies in England and Wales. The new limitation period will apply to causes of action which accrued before the commencement of this section, but not if those causes of action were time-barred by the previous 12 year limitation period.
321.Section 62 makes equivalent provision to the legislation applicable to Scotland and Northern Ireland.
Section 63 Power to search vehicles
322.Chapter 3 of Part 5 of the Proceeds of Crime Act 2002 (POCA) is concerned with the recovery of cash in summary proceedings. Section 294 of POCA enables a customs officer, a constable or an accredited financial investigator to seize cash if he has reasonable grounds for suspecting that the cash is recoverable property (property obtained through unlawful conduct) or intended for use in unlawful conduct. The cash must not be less than the “minimum amount” which is defined at section 303. It is currently set at £1000 (see The Proceeds of Crime Act 2002 (Recovery of Cash in Summary Proceedings: Minimum Amount) Order 2006 (SI 2006 No. 1699)).
323.In order to support the powers to seize cash, section 289 of POCA provides a power to search persons and premises for cash. The power to search premises is only exercisable where the officer has lawful authority to be present under other legislation or is present with the occupier’s or owner’s permission. In respect of a constable, he could be exercising his powers of entry under the Police and Criminal Evidence Act 1984. Section 289 of POCA does not include a power to forcibly enter premises or to demand entry from the owner or occupier.
324.The definition of “premises” for this search power includes “vehicle” – see section 316 of POCA read with section 23 of the Police and Criminal Evidence Act 1984. An officer therefore has no power to force entry into a vehicle. Section 63 inserts provisions into section 289 of POCA so that an officer can require the search of a vehicle if he has reasonable grounds for suspecting there is cash in the vehicle which is recoverable property or intended for use in unlawful conduct and that it is not less than the minimum amount. The power to search can only be exercised where there is an identifiable person in control of the vehicle and that person (the suspect) is in or in the vicinity of the vehicle.
325.The new provision does not contain a power to force entry into a vehicle; rather, new section 289(1D) provides that the officer can require the person accompanying the vehicle to permit entry and allow a search of that vehicle.
326.New section 289(1C) provides that the power is not exercisable where the vehicle is on certain categories of private property.
Section 64 Detention of Seized Cash
327.Once cash has been seized under section 294 of POCA, it may be detained initially for a period of 48 hours (section 295(1)). A magistrate (or a sheriff in Scotland) may make an order for continued detention of the cash if satisfied that there are reasonable grounds for the officer’s suspicion and that the continued detention is justified for the purposes of investigating its origin or intended use. The magistrate may also make an order for continued detention if consideration is being given to bringing criminal proceedings, or if such proceedings have been commenced and not concluded. Section 295(2)(a) of POCA originally provided that the magistrate could order the detention of seized cash for a three month period. Section 64 amends this by providing that the period of detention may be extended for six months. The maximum period during which seized cash may be detained remains at two years from the date of the first order.
Section 65 Forfeiture of detained cash
328.POCA gives powers to the police, officers of HM Revenue and Customs and certain accredited financial investigators to seize and detain cash derived from or intended for use in unlawful conduct and to secure its forfeiture by order of the magistrates’ court, or sheriff in Scotland. Section 66 introduces new provisions to enable law enforcement agencies to forfeit detained cash without a court order in uncontested cases.
329.Section 65 inserts new sections 297A -297G into POCA. Where a cash detention order has been made under section 295(2) of POCA, new section 297A(2) provides for a senior officer to give a forfeiture notice to any person.
330.Subsection (3) provides that the Secretary of State must make regulations about how a notice is to be given. Subsections (6) and (7) provide a definition of a senior officer. Subsection (8) provides that the notice for these purposes is to be referred to as a forfeiture notice.
331.New section 297B deals with the content of a forfeiture notice. Subsection (1) sets out what must be contained in a forfeiture notice. It also requires the notice to specify a period for objecting and an address for objections.
332.Subsection (2) provides that the period for lodging a objection to the proposed forfeiture must be at least 30 days from the date after the notice was given.
333.New section 297C sets out the effect of giving a forfeiture notice. Once a notice is given subsection (2) provides for the cash to be detained until it is forfeited under the section, or the notice lapses, or the cash is released. The notice lapses if an objection is made within the period for objecting. If no objection is made within that period, and the notice has not lapsed, the cash is forfeited, without the need for any additional court process.
334.New section 297D makes provision for the further detention or the release of cash following the lapse of a forfeiture notice.
335.Under section 297E, a person aggrieved by forfeiture under this procedure has the right to apply to the magistrates’ court to set aside the forfeiture of the cash or any part of it. Such an application must be made within 30 days of the day on which the period for objecting ended, although an out of time application may be given permission by the court in exceptional circumstances.