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 Cash, cars, paintings, bank accounts in Switzerland and France, a debt owed to a defendant Forfeiture order upheld by Court of Appeal

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

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

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

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

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

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 – NCCTs

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

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

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

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

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

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

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

2000 PIU Report Recovering the Proceeds of Crime

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

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

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

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

Trends 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

Perception

Clean or Dirty Money ? Confiscation proceedings Civil recovery proceedings Cash forfeiture proceedings Taxation proceedings Money laundering offences

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

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