Blackstone's Guide To The Proceeds Of Crime Act 2002,9780199277650

Blackstone's Guide To The Proceeds Of Crime Act 2002

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Edition: 2nd
ISBN13: 9780199277650
ISBN10: 0199277656
Format: Paperback
Pub. Date: 2005-03-24
Publisher(s): Blackstone Press
List Price: $117.33

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Summary

The Blackstone's Guide Series delivers concise and accessible books covering the latest legislation changes and amendments. Published within weeks of an Act, they offer expert commentary by leading names on the effects, extent and scope of the legislation, plus a full copy of the Act itself.They offer a cost-effective solution to key information needs and are the perfect companion for any practitioner needing to get up to speed with the latest changes. The Proceeds of Crime Act 2002 has had a far-reaching impact on criminal procedure. The Act comprehensively addresses the detection and recovery of criminal property in all aspects under the overall supervision and control of a new body, the Assets Recovery Agency. Confiscation hearings andrestraint orders are fast becoming part of the routine of a typical criminal practice.This second edition of the successful Guide provides a detailed commentary on the Proceeds of Crime Act 2002, whilst also covering all of the developments since the Act came into force in Spring 2003 and referring to subsequent related legislation. It contains the new set of Crown Court Rulesgoverning procedures, forms, and timetables, and the new Code of Practice dealing with search, seizure warrants and production and disclosure orders. Also included is updated information on the money-laundering provisions, and a developed consideration of the workings and progress of the AssetsRecovery Agency since its implementation. The user-friendliness of the Guide has been further improved with the addition of helpful court procedure guides at the end of each chapter. Practitioners will find this revised Guide an invaluable reference source and it is an essential purchase for every lawyer, both civil and criminal.

Author Biography


Edward Rees QC is a specialist criminal law barrister at Doughty Street Chambers with expertise in serious fraud, confiscation cases and trials with civil libertarian implications. He is principal speaker on behalf of the Criminal Bar Association on criminal confiscation and Honorary Fellow in Criminal Process at Kent University. Richard Fisher is a barrister at Doughty Street Chambers specialising in Criminal Defence.

Table of Contents

Preface to the Second Edition xv
Table of Cases
xvii
Tables of European and International Cases
xxiii
Table of Primary Legislation
xxv
Tables of Secondary Legislation
xxxiii
Table of Conventions
xxxv
List of Abbreviations
xxxvii
Introduction
Purpose of the Legislation
1(9)
The Statutory Agenda
1(9)
The New Law
10(10)
The Assets Recovery Agency
10(4)
Money Laundering
14(1)
`One-Stop Shopping'
15(1)
Criminal Confiscation
16(1)
Civil Recovery, Cash Seizure, and Taxation
17(3)
Scheme of the Commentary
20
The Assets Recovery Agency
Overview
1(16)
Structure of the Agency
1(3)
Functions of the Agency
4(1)
Director's Guidance
5(5)
Revenue Functions
10(5)
Aims and Objectives of the Asset Recovery Strategy
15(2)
The Director's Role and Functions
17(6)
Appointment and Terms
17(1)
Training and Accreditation of Financial Investigators
18(1)
Investigative Tools
19(1)
Confiscation Orders and Enforcement
20(3)
Progress of the ARA Since Implementation
23
Asset Recovery Updates
23(3)
ARA Annual Report
26(3)
ARA Business Plan 2004-5
29
Criminal Confiscation
Overview
1(15)
Previous Legislation
1(4)
Principal Changes
5(1)
The Human Rights Act
6(10)
The Process---A Summary
16(7)
Summary
16(6)
The Order of Events
22(1)
When Does the Act Apply?
23(3)
The Crown Court
23(2)
Magistrates' Courts
25(1)
Mandatory Enquiry
26(4)
Prosecution Application
26(1)
Abuse of Process
27(3)
Evidence and Proof
30(22)
The Burden and Standard of Proof
30(4)
Sources of Proof
34(1)
Trial Evidence
35(2)
Prosecution Statements of Information
37(4)
Defence Responses
41(3)
Provision of Information by Defendant
44(2)
Evidence in the POCA Hearing
46(5)
The Role of the Assumptions
51(1)
Stage One of the Process: Determining `Criminal Lifestyle'
52(3)
The Meaning of `Criminal Lifestyle'
52(3)
Stage Two: Has the Defendant Benefited from Criminal Conduct?
55(30)
The Meaning of Criminal Conduct
55(2)
Particular Criminal Conduct
57(2)
General Criminal Conduct
59(1)
The Meaning of Benefit
60(9)
The Meaning of Property
69(2)
Obtaining a Pecuniary Advantage
71(6)
`Obtained as a Result of or in Connection with Criminal Conduct'
77(8)
The Assumptions
85(27)
The First Assumption---Transferred Property
86(2)
The Second Assumption---Property Held by the Defendant after Conviction
88(6)
The Third Assumption---Expenditure
94(7)
The Fourth Assumption---Property Free of Other Interests
101(1)
Defeating the Assumptions
102(10)
Stage Three: Determining the Recoverable Amount
112(24)
General
112(3)
Taking Account of All of the Criminal Conduct
115(2)
The Value of the Benefit
117(13)
Joint Benefit
130(3)
Proceedings by a Victim
133(2)
Recovery, Forfeiture, and Previous Confiscation Orders
135(1)
Stage Four: Determining the Available Amount
136(45)
General
136(7)
Assets not Proceeds
143(4)
Burden of Proof
147(8)
Priority Obligations
155(3)
Tainted Gifts
158(1)
The Meaning of `Tainted Gift'
159(4)
The Value of a Tainted Gift
163(3)
The Value of the Available Amount
166(2)
Third Party Interests
168(5)
The Matrimonial Home
173(4)
Third Party Representations
177(4)
Confiscation Orders and Sentence
181(10)
General Relationship with Sentence
181(5)
Relationship with Other Orders
186(3)
Relationship with Compensation Orders
189(1)
Costs
190(1)
Postponement
191(22)
Postponement and Sentence
191(6)
Powers of Postponement
197(7)
Exceptional Circumstances
204(6)
Common Law Adjournments
210(2)
Postponement on Appeal
212(1)
The Making of the Order
213(3)
Fixed Amount
213(1)
Time for Payment
214(2)
Enforcement
216(18)
The Enforcement Authority
216(2)
Default in Payment
218(9)
Enforcement Receivers
227(2)
Director's Receivers
229(1)
Sums Realized by Receivers
230(2)
Seized Money
232(1)
Enforcement Abroad
233(1)
Reconsideration
234(13)
General
234(3)
Prosecution Application
237(4)
Inadequacy of Available Amount
241(4)
Discharge of Small or Inadequate Amounts
245(2)
Absconding Defendants
247(7)
Convicted Defendants
247(4)
Unconvicted Defendants
251(3)
Appeals
254(7)
Court of Appeal---by the Defendant
254(3)
Court of Appeal---by the Prosecution or Director
257(3)
House of Lords
260(1)
Compensation
261
Investigations into Criminal Proceeds
Overview
1(12)
Ambit of the Powers
1(3)
The Investigatory Powers
4(2)
Legal Professional Privilege
6(5)
Other Exclusions and Provisions
11(2)
Production Orders
13(11)
Introduction
13(3)
Applying for the Order
16(5)
Breaching an Order
21(1)
Entry to Premises and Access to Materials
22(2)
Search and Seizure Warrants
24(15)
Introduction
24(2)
Applying for the Warrant
26(6)
Additional Provisions and Executions of the Warrant---Confiscation and Money Laundering Investigations
32(4)
Additional Provisions and Execution of the Warrant---Civil Recovery Investigations
36(2)
Execution of the Warrant---Extent and Consequences
38(1)
Disclosure Orders
39(10)
Introduction
39(1)
Applying for the Order
40(2)
Effect of the Order
42(3)
Use of a Disclosure Order
45(3)
Penalties for Failure to Comply
48(1)
Customer Information Orders
49(9)
Introduction
49(4)
Applying for the Order
53(3)
Non-compliance Offences
56(2)
Account Monitoring Orders
58(6)
Introduction
58(2)
Applying for the Order
60(4)
Code of Practice Governing the Investigation Powers
64(6)
Overseas Evidence
70(3)
Principles and Application
70(2)
Process after Grant
72(1)
Prejudicing an Investigation
73
Elements of the Offence
73(1)
Avoiding Liability
74(1)
Legal Profession
75(4)
Penalties
79
Restraint Proceedings
Overview
1(6)
Introduction
1(6)
Conditions for Exercise of Powers
7(8)
Crown Court Rules
7(2)
Application Before Charge
9(4)
Application Following Charge
13(1)
Application Following Conviction
14(1)
Effects of a Restraint Order
15(7)
Definitions
22(2)
Realizable Property
22(1)
Holding and Interests in Property
23(1)
Application, Variation, and Discharge
24(9)
Scope of Applicants
24(1)
Appeal
25(1)
Evidence
26(6)
Variation and Discharge
32(1)
Appointment of Management Receivers
33(12)
Scope
33(2)
Appointment and Powers
35(4)
Third Parties
39(5)
Discharge of Management Receivers
44(1)
Restraint Proceedings and Seized Money
45(1)
Scope and Extent
45(1)
Principles to be Followed in Exercise of Powers
46
Purpose
46(1)
Specific Principles
47
Money Laundering
Overview
1(13)
Introduction
1(3)
Perceived Aims of the POCA
4(2)
Relationship with Earlier Legislation
6(2)
Definition of Terms
8(6)
Concealing the Proceeds of Criminal Conduct (s 327)
14(11)
Basic Elements of the Offence
14(2)
Avoiding Liability
16(2)
Revision of Previous Provisions
18(5)
The Legal Profession
23(2)
Assisting Another to Retain the Benefits of Criminal Conduct (s 328)
25(15)
Basic Elements of the Offence
25(5)
Avoiding Liability
30(1)
Revision of Previous Provisions
31(1)
The Legal Profession
32(8)
Acquisition, Use, and Possession of the Proceeds of Crime (s 329)
40(7)
Basic Elements of the Offence
40(4)
Avoiding Liability
44(1)
The Legal Profession
45(2)
Reporting under s 338
47(6)
The Reporting Procedure
47(3)
Protected and Authorized Disclosures
50(3)
Failure to Disclose Knowledge or Suspicion of Money Laundering (s 330)
53(18)
Introduction
53(1)
The Regulated Sector
54(3)
The Regulated Sector---The Position of Legal Advisers
57(4)
Other Professions
61(1)
The s 330 Offence of Failing to Disclose
62(9)
Tipping Off
71(10)
Introduction
71(1)
Basic Elements of the Offence
72(3)
Practical Dilemmas for the Legal Profession
75(6)
Penalties
81
Civil Recovery of the Proceeds of Unlawful Conduct
Introduction
1(15)
General
1(5)
Representation
6(2)
Relationship with Criminal Proceedings
8(4)
The Human Rights Act
12(4)
Definitions
16(10)
Recoverable Property
16(1)
Property and Value
17(1)
Unlawful Conduct
18(1)
Property Obtained through Unlawful Conduct
19(3)
Exceptions
22(2)
Associated Property
24(2)
Acquisition in Good Faith
26(2)
Tracing Property
28(5)
Disposal of Original Property
28(4)
Mixing Property
32(1)
Procedure
33(15)
Procedure Generally
33(3)
Commencing Proceedings
36(2)
Limitation
38(1)
Burden of Proof
39(1)
Standard of Proof
40(3)
Production and Disclosure Orders, Search and Seizure Warrants
43(5)
Interim Receiving Orders
48(12)
General
48(3)
The Effect of an Order
51(4)
Receivers
55(4)
Collateral Proceedings
59(1)
The Making of a Recovery Order
60(11)
General
60(2)
Exceptions
62(2)
Victims of Theft
64(1)
Holders of Associated Property and Joint Tenants
65(3)
Pension Rights
68(1)
Insolvency
69(1)
Consent Orders
70(1)
The Trustee for Civil Recovery
71
Functions
71
Cash Seizure
Introduction
1(5)
Definitions
6(4)
`Cash'
6(1)
`Recoverable Property'
7(1)
`Unlawful Conduct'
8(1)
`Property Obtained through Unlawful Conduct'
9(1)
Search and Seizure
10(9)
Search Powers
10(5)
Prior Approval
15(1)
Code of Practice
16(2)
Seizure
18(1)
Detention of Cash
19(2)
Forfeiture
21(5)
Powers
21(4)
Representation
25(1)
Release of Detained Cash
26(1)
Victims and Other Owners
27(1)
Compensation
28
Revenue Functions
General
1(6)
Reasonable Grounds for Suspicion
7(2)
Notice to the Commissioners
9(7)
Vesting of Functions
9(1)
Personal Income, Gain, and Company Profits
10(3)
Inheritance Tax
13(2)
Settlements
15(1)
Appeals
16(151)
Appendix 1 The Proceeds of Crime Act 2002 (Chapter 29) 167(200)
Appendix 2 The Magistrates' Courts (Detention and Forfeiture of Cash) Rules 2002 (SI 2002/2998) 367(15)
Appendix 3 Code of Practice Issued under Section 377 of the Proceeds of Crime Act 2002---Investigation Powers in Chapter 2, Part 8 382(46)
Appendix 4 The Proceeds of Crime Act 2002 (Failure to Disclose Money Laundering: Specified Training) Order 2003 (SI 2003/171) 428(2)
Appendix 5 The Proceeds of Crime Act 2002 (References to Financial Investigators) Order 2003 (SI 2003/172) 430(5)
Appendix 6 The Proceeds of Crime Act (Recovery from Pension Schemes) Regulations 2003 (SI 2003/291) 435(4)
Appendix 7 The Crown Court (Confiscation, Restraint and Receivership) Rules 2003 (SI 2003/421) 439(23)
Appendix 8 The Crown Court (Amendment) Rules 2003 (SI 2003/422) 462(3)
Appendix 9 The Criminal Appeal (Confiscation, Restraint and Receivership) Rules 2003 (SI 2003/428) 465(19)
Appendix 10 The Money Laundering Regulations 2003 (SI 2003/3075) 484(24)
Appendix 11 Practice Direction---Proceeds of Crime Act 2002 Parts 5 and 8: Civil Recovery 508(10)
Appendix 12 Legal Services Commission---Guidance to Solicitors and Applicants Seeking Community Legal Service Funding for Proceedings under the Proceedings of Crime Act 2002 Involving the Assets Recovery Agency 518(7)
Index 525

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