The Criminal Finances Bill proposes various amendments
to the Proceeds of Crime Act 2002 which deals with civil recovery.
Sundeep Soor, Head of Fraud and Tax at Cartwright King
Solicitors outlines what these are in this article.
Cartwright King have successfully acted for numerous businesses
and individuals in relation to cash seizure, detention and
forfeiture cases. New provisions extend detention and forfeiture
beyond cash. Similar provisions proposed will affect monies in bank
or building society accounts which would involve these accounts
initially being 'frozen' for up to 2 years.
The authority would need to show initially that 'reasonable
grounds' exist to show that the monies are suspected to be
'recoverable property' or is suspected to be intended for
use in crime. Once the investigation is concluded an application
for the forfeiture of the funds would be made and ordered if the
court is satisfied that the cash is 'recoverable property'
or is intended for use in crime.
The individual or business will be allowed in certain situations
to access part of the frozen funds, for example, to meet living
expenses or to allow the running of a business. Surprisingly there
is proposed provision to allow the funds to be used to meet
appropriate legal costs. This is in contrast to criminal
Restraint Orders or civil
Cash Seizures where release of funds for legal fees is not
New powers are to be given to authorities during the
investigation stage to require an individual to set out the nature
and extent of their interest in property where the value is greater
than Ł100,000. This would be applicable where the
individual's known income did not explain ownership of that
property. Interim freezing orders (to prevent dissipation) could
also be put in place whilst the application is considered by the
Applications for 'unexplained wealth orders' would be
made to the High Court, who would need to be satisfied either that
there were reasonable grounds for suspecting that the respondent
is, or has been, involved in serious crime (or a person connected
with the respondent is, or has been, so involved) or that the
respondent was an overseas 'politically exposed
Where a person provided information in response to an
'unexplained wealth order' the authority may use that
information as a basis for civil recovery proceedings or in
connection with any criminal confiscation proceedings. Failure to
provide a response (without reasonable excuse) to the unexplained
wealth order could result in a presumption that the property is
recoverable in civil recovery proceedings.
Where a person failed to provide information in response to an
'unexplained wealth order' (without reasonable excuse)
there would be a rebuttable presumption that the property in
question is 'recoverable property' for the purposes of any
civil recovery proceedings taken subsequently.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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It was back in 1998 that Jack Straw, the then Home Secretary, asked the Law Commission to examine the law on fraud and whether a general offence of fraud would be an improvement to the body of criminal law.
The Fraud Act 2006, which represents the most radical change in the law of criminal fraud since the Theft Act 1968, came into force on January 15, 2007. We are now over a year into the new law, which seems a reasonable juncture to pose the question: has it had any impact?
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