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Proceeds of Crime and Asset Recovery

Proceeds of Crime and Asset Recovery. 21 February 2007. A Proceeds of Crime Legislative History. 1978. Operation Julie R v Cuthbertson Conspiracy to produce LSD Forfeiture Order - s 27 Misuse of Drugs Act 1971

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Proceeds of Crime and Asset Recovery

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  1. Proceeds of Crime and Asset Recovery 21 February 2007

  2. A Proceeds of Crime Legislative History

  3. 1978 • Operation Julie • R v Cuthbertson • Conspiracy to produce LSD • Forfeiture Order - s 27 Misuse of Drugs Act 1971 • Cash, cars, paintings, bank accounts in Switzerland and France, a debt owed to a defendant • Forfeiture order upheld by Court of Appeal

  4. 1981 • R v Cutherbertson • House of Lords : • Conspiracy not an offence under 1971 Act • S 27 - No extraterritorial effect • S 27 - No enforcement machinery • S 27 - No Parliamentary intention for orders against drug trafficking profits • Allowed appeal against forfeiture order

  5. 1984 • Hodgson Committee recommendations • Confiscation powers • Prescribed minimum but no maximum • Available in Crown Courts only • Magistrates to have power to commit for confiscation

  6. 1985 • Home Affairs Select Committee • “Misuse of Hard Drugs – Interim Report” • Approved US policy of giving courts “draconian powers” to remove proceeds of drug trafficking

  7. 1986 • Drug Trafficking Offences Act 1986 • First E&W confiscation legislation • Limited to drug trafficking cases • Discretionary statutory assumptions

  8. 1988 • UN Vienna Convention • Criminal Justice Act 1988 • Extended confiscation to non-drugs cases • No statutory assumptions in non-drugs cases

  9. 1989 • Creation of Financial Action Task Force by G7 • Purpose : the development and promotion of national and international policies to combat money laundering • 40 Recommendations • Mutual evaluations • Blacklist – NCCT’s

  10. 1990 • Criminal Justice International Co-operation Act 1990 • Introduction of cash forfeiture system • Amendments to DTOA 1986 • Allowed UK to ratify Vienna Convention • Criminal Justice (Confiscation) (NI) Order 1990 • First NI confiscation legislation • Discretionary statutory assumptions in drugs cases • No statutory assumptions in non-drugs cases • Strasbourg Convention on Laundering, Search, Seizure and Confiscation

  11. 1991 • Home Office Working Group on Confiscation • First report • Recommended amendments to DTOA 1986

  12. 1993 • Criminal Justice Act 1993 • Created drug money laundering offences • Amended DTOA 1986 and CJCNIO 1990 • Most amendments not brought into force

  13. 1994 • Drug Trafficking Act 1994 • Consolidation of drugs related confiscation and forfeiture provisions • Mandatory statutory assumptions for drugs cases

  14. 1995 • Proceeds of Crime Act 1995 • More strengthening amendments • Discretionary statutory assumptions in non-drugs cases

  15. 1996 • Proceeds of Crime (NI) Order 1996 • Replaced the 1990 Order • Introduced mandatory statutory assumptions for drugs cases • Introduced discretionary statutory assumptions for non-drugs cases

  16. 1997 • Home Office Working Group on Confiscation – Third Report • Recommended “full” civil forfeiture • Recommended National Confiscation Agency • Recommended further amendments to DTA 1994 and POCO 1996

  17. 2000 • PIU Report “Recovering the Proceeds of Crime”

  18. 2002 • Proceeds of Crime Act 2002 • Creation of Assets Recovery Agency • Civil recovery proceedings in High Court • Taxation of suspected criminal gains • Extended cash forfeiture scheme • Prosecution appeals on confiscation issues • Mandatory statutory assumptions if “criminal lifestyle” • Strengthened money laundering offences

  19. 2005 • Serious Organised Crime and Police Act 2005 • Significant amendments to civil recovery scheme • Minor amendments to confiscation scheme

  20. 2006 • “Criminal Memoirs” consultation by Home Office • Possible new offence for payment to criminals for publications about crimes • Possible enlargement of civil recovery scheme to cover publishers’ royalties

  21. 2007 • Government introduces Serious Crime Bill proposing : • Merger of Assets Recovery Agency into Serious Organised Crime Agency • Civil Recovery proceedings to be brought by prosecutors • Additional investigation powers for cash forfeiture investigations

  22. Trends 1986 - 2007 • Increasing international pressure to comply with norms • Less divergence between provisions in drugs and non-drugs cases • Increasing use of civil alternatives • Broadening definitions of criminal proceeds • Reduction in judicial discretion in confiscation hearings

  23. Perception

  24. Perception

  25. “Clean” or “Dirty” Money ? • Confiscation proceedings • Civil recovery proceedings • Cash forfeiture proceedings • Taxation proceedings • Money laundering offences

  26. Evidence often offered to prove criminal origin of property (1) • Previous criminal convictions • Criminal associates • Contamination of cash • Accomplice evidence • Audit Trails • Unlikelihood of legitimate origin • Absence of commercial or domestic logic

  27. Evidence often offered to prove criminal origin of property (2) • Expert evidence • Packaging of proceeds • Denomination of banknotes • Lies by the defendant • Inferences from silence • Admissions

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