Cash Forfeiture: Insufficient Protections?

Below Maia Cohen-Lask, Associate at Corker Binning, explains the three stages that lead up to a cash forfeiture order, including how cash is seized, prior to discussing the details of the case. Maia also discusses the extent to which cash forfeiture is being expanded by the Criminal Finances Act 2017.

The various asset recovery powers contained in the Proceeds of Crime Act 2002 (POCA) are routinely criticised for being draconian and unfair to those who fall subject to them. Cash forfeiture is one element of this regime, and the recent decision of Campbell v Bromley Magistrates’ Court and Commissioner of Police of the Metropolis [2017] EWCA Civ 1161 was a timely reminder of the lack of protections afforded to those facing the forfeiture of cash believed to be the proceeds of crime.

To understand the significance of the Campbell case, it is necessary to understand the three stages of the process which lead up to a cash forfeiture order:

1. Police can seize cash if they have reasonable grounds for suspecting that it is recoverable property (i.e. property obtained through unlawful conduct) or intended by any person for use in unlawful conduct.
2. If police want to keep the cash to investigate whether or not it is in fact criminal, they must apply to the magistrates’ court within 48 hours to detain the cash. If the court is satisfied that (a) there are reasonable grounds for suspecting that the cash is either recoverable or intended to be used in unlawful conduct, and (b) either its continued detention is justified whilst its derivation is further investigated, or criminal proceedings against the person for an offence related to the cash are ongoing, then it can order detention of the cash, in blocks of 6 months at a time, up to a maximum of 2 years.
3. If police want to take the cash away permanently, they must apply to the magistrates’ court for forfeiture. The test for the court to decide is whether it is satisfied, on the balance of probabilities, that the cash is recoverable property or intended for use in unlawful conduct.

The Campbell case related to a challenge by the appellant to the initial detention of the cash. He sought to argue that if the initial detention was unlawful, then this should be a preliminary issue to be resolved, before forfeiture was determined i.e. that lawful detention was in effect a “gateway for forfeiture”. The magistrates’ court refused to hear it as a preliminary issue, and judicial review was applied for and refused. The Court of Appeal dismissed the appellant’s appeal.

The significance of this decision, therefore, is that the Court has effectively determined that it does not matter whether or not the initial detention (and by logical extension, seizure) of the cash was lawful or not for forfeiture to take place.

At first blush, this does not appear to be a controversial decision. For cash to be forfeited, the police must be able to prove to the civil standard that it is recoverable property or intended for use in crime. So this decision will not mean that people are deprived of “innocent” cash resulting from unlawful seizures. An unlawful arrest does not mean that a person cannot be prosecuted if there is still evidence which would justify a charge. To preclude a justified forfeiture on the basis of an unlawful seizure might appear to be throwing the baby out with the bathwater.

However, on closer inspection, the ramifications of this decision give cause for concern. Unlike the analogy with arrest and prosecution, seizure and detention are necessary prerequisites to a forfeiture application. Parliament has not given police the power to seize cash on a whim, but has provided a statutory framework within which it must take place. If cash can be forfeited even after an unlawful seizure, does this not circumvent the statutory requirement for reasonable grounds for suspicion? Individuals who have been subject to an unlawful seizure or detention do have the power to judicially review, which could, if successful, result in a return of the cash. However, if an application for forfeiture is concluded before judicial review proceedings, then this will provide no effective remedy.

In conclusion, the Campbell case is demonstrative of how easy it is for the investigative agencies to deprive individuals of assets. With the ambit of cash forfeiture being expanded by the Criminal Finances Act 2017 into moneys held in banks and building society accounts, issues of this nature may begin to trouble the courts with increased frequency. For now, the practical impact of the case is that it will be imperative that anyone wishing to challenge the initial seizure or detention of cash to do so by way of judicial review immediately, in order to ensure that this is litigated prior to a forfeiture application being made.