Millington and Sutherland Williams on The Proceeds of Crime

Mark Sutherland Williams is a Judge of the First-Tier Tribunal based at Southampton. He was previously a barrister at 3PB, where he appeared as counsel in a number of the most significant cases decided in the proceeds of crime field, and was head of the Asset Forfeiture Group for 10 years. HHJ Michael Hopmeier is a Circuit Judge based at Kingston Crown Court. He was previously a barrister at Hardwicke Chambers and 23 Essex Street and, during a 30 year career at the Bar, undertook many high-profile fraud cases, both prosecuting and defending. Rupert Jones is a barrister at The Chambers of Ian Lawrie QC, 3 Paper Buildings. He was called to the Bar in 2000 and specialises in the field of asset forfeiture and proceeds of crime.

1. Setting the Scene ; Introduction ; Why was Confiscation Law Enacted ; The Object of the Confiscation Regime ; The Proceeds of Crime Act 2002: A Summary ; Agencies Responsible for the Enforcement of the Legislation ; The International Element ; Money Laundering ; Recent Developments in Confiscation Law ; Deferred Prosecution Agreements ; 2. Restraint Orders ; Introduction ; Restraint Orders ; Northern Ireland ; Protecting Restraint Orders in Relation to Real Property ; 3. Ancillary Orders ; Introduction ; Seizure of Assets ; Disclosure Orders ; Oral Examination ; Repatriation of Assets ; Writ of ne exeat regno ; 4. Management Receivers ; Introduction ; Jurisdiction to Appoint Management Receivers ; Exercising the Discretion to Appoint Management Receivers: The Capwell Guidelines ; Satus of the Receiver on Appointment ; Duties and Liabilities of the Receiver ; Remuneration of Receivers ; Discharge of the Receiver ; Taxation and Receivers ; 5. . Application to Vary and Discharge Restraint Orders ; Introduction ; Applications to Dishcharge Restraint Orders ; Applications to Vary the Restrtaint Order ; The Principles on which the Court Acts: the 'Legislative Steer' ; The Source for Payment of Legal Fees and General Living Expenses ; Release of Funds after a Confiscation Order has been Made ; 6. Enforcement of Restraint and Receivership of Orders: Contempt of Court ; Introduction ; Procedure in Crown Court Applications ; The Hearing ; Procedure on High Court Applications ; The Hearing ; 7. Practice and Procedure in the Crown Court ; Introduction ; The Overriding Objective ; Procedure on Applications for Restraint Orders ; Procedure on Applications to Vary or Discharge the Order ; Receivership Proceedings ; Provisions as to Evidence and the Service of Documents ; 8. Preparing for Confiscation Hearings ; Introduction ; Confiscation in the Magistrates' Court ; The Basics of Confiscation under POCA ; Postponement of POCA Confiscation Hearings ; Preparatory Steps for POCA Hearing ; 9. The Confiscation Hearing ; Introduction ; Statutory Benefit ; Valuing Benefit ; Recoverable Amount ; Tainted Gifts ; Disproportionality ; Time for Payment ; The Effect of a Confiscation Order on Sentence and the Court's Other Powers ; Appeals ; Defendants Who Die or Abscond ; 10. Reconsideration of Confiscation Orders ; Introduction ; Variation and Discharge under the Proceeds of Crime Act 2002 ; Reconsideration of Case where no Confiscation Order was Originally Made ; Reconsideration of Benefit: Hearing held but no Confiscation Order Originally Made ; Where a Confiscation Order had been Made: Reconsideration of Benefit ; Procedure: Applications under Sections 19, 20, or 21 of POCA ; Increase in Availabel Amount ; Inadequacy of Available Amount ; Variations and Discharge for Defendants who Abscond ; 11. Enforcement of Confiscation Order ; Introduction ; Roles of Law Enforcment Agencies in the Satisfaction of Confiscation Orders ; The Joint Asset Recovery Database ; Voluntary Satisfaction by the Defendant ; General Living Expenses and Legal Fees ; Enforcement Receivers under POCA ; Procedure on Applications for the Appointment of Enforcement Receivers under POCA ; The Powers of the Magistrates' Court ; Delay in Taking Enforcement Action ; 12. The Insolvent Defendant ; Introduction ; The Position under POCA ; Insolvency and Confiscation Orders ; Interaction between Restraint and Insolvency Proceedings ; 13. Civil Recovery: Property Freezing Orders and Interim Receivers ; Introduction ; Overview in Relation to Civil Recovery ; Property Freezing Orders ; Management Receiving Orders ; Interim Recieving Orders ; The Legislative Steer and Third Party Creditors ; The Insolvent Respondent ; Compensation in IRO and PFO Cases ; Legal Expenses in Civil Recovery Proceedings ; 14. Civil Recovery: Recovery Orders, the ECHR, and Taxation ; Introduction ; Recovery Orders ; Safeguards and Exemptions in Civil Recovery ; The Impact of the European Convention on Human Rights on Civil Recovery ; Pension Schemes ; Civil Recovery and Taxation ; 15. The Seizure and Recovery of Cash ; Introduction ; The Seizure and Forfeiture of Cash ; Practice and Procedure ; Continued Detention Hearings: Practice ; Applications for Forfeiture of Detained Cash ; The Hearing ; Rules of Evidence ; Costs and Compensation ; Appeals ; Searched and Seizure of Cash ; Compatibility of the Forfeiture Provisions with the ECHR ; The Control of Cash (Penalties) Regulations ; 16. Third Parties ; Introduction ; Restraint Orders ; Confiscation Orders and their Enforcement ; Specific Third Party Claims ; Conclusion ; 17. Investigations ; Introduction ; Defining Investigations ; Courts and Judges having Jurisdiction to Make Orders ; Production Orders ; Search and Seizue Warrants ; Judicial Discretion ; Customer Information Orders ; Account Monitoring Orders ; Disclosure ; Statements Made in Response to Orders ; Financial Reporting Orders under the Serious Organised Crime and Police Act 2005 ; 18. Appeals ; Introduction ; Restraint Order Appeals: Practice and Procedure ; Receivership Order Appeals: Practice and Procedure ; Confiscation Order Appeals: Practice and Procedure ; The Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003 ; Appeal in connection with External Requests and Orders associated with Receivership Orders ; Appeals against Orders for Cash Forfeiture or Condemnation ; Appeals under Part 6 of POCA: Revenue Functions ; The Criminal Cases Review Commission ; Appeals against Findings of Contempt of Court ; Thumbnail Guide to the Appeal Provisions within the Criminal Procedure Rules ; 19. The Intenational Element ; Introduction ; Cooperation under POCA ; Enforcement of POCA Confiscation Orders in Different Parts of the UK ; Assistance under the Crime (International Co-operation)aCT 2003 (CICA) ; International Cooperation ; 20. Money Laundering ; Introduction ; Money Laundering under the Proceeds of Crime Act 2002 ; 21. Disclosure of Suspicious Transactions ; Introduction ; Disclosure of Suspicious Transactions under POCA ; Professional Legal Advisers ; Suspicious Activity Reports: 'SARs' ; Tipping Off ; 22. Costs, Funding, and Compensation ; Introduction ; The Magistrates' Court and Costs ; The Cown Court and Costs ; Receivership Costs and Fees ; Costs: High Court/Civil Cases ; Legal Expenses and Legal Funding ; Compensation ; 23. Condemnation and Restoration ; Introduction ; The Condemnation and Forfeiture of Goods ; Detention, Seizure, and Condemnation ; Condemnation: Practice and Procedure ; Condemnation: Costs and Compensation ; Condemnation Appeals ; Condemnation in the High Court ; Condemnation and the ECHR ; Red Diesel Cases ; Delivery Up ; Restoration ; Restoration: Practice and Procedure ; Restoration Appeals ; Restoration: Costs and Compensation ; The ECHR and Restoration ; 24. Terrorism and the Proceeds of Crime ; Introduction ; Terrorism and the International Dimension ; The UK Approach ; 25. Civil Fraud before the Tax Tribunal ; Introduction ; Practice and Procedure ; Relevant Enquiries and Practical Issues ; Appendix 1 The Proceeds of Crime Act 2002: Sections 6-18 (as amended) ; Appendix 2 The Proceeds of Crime Act 2002: Sections 40-42 (as amended) ; Appendix 3 The Proceeds of Crime Act 2002: Sections 48-51 (as amended) ; Appendix 4 The Proceeds of Crime Act 2002: Section 69 (as amended) ; Appendix 5 The Proceeds of Crime Act 2002: Sections 294-303A (as amended) ; Appendix 6 The Proceeds of Crime Act 2002: Sections 327-329 ; Appendix 7 The Proceeds of Crime Act 2002: Section 340 ; Appendix 8 The Proceeds of Crime Act 2002: Schedule 6 ; Appendix 9 Restraint Order ; Appendix 10 Management Receivership Order ; Appendix 11 Enforcement Receivership Order ; Appendix 12 Variation of Restraint Order ; Appendix 13 Certificate of Inadequacy ; Appendix 14 Extract from Practice Direction on POCA: Parts 5 and 8 (Section III) ; Appendix 15 Extract from Practice Direction on POCA: Parts 5 and 8 (Section IV) ; Appendix 16 Interim Receiving Order under Section 246 of POCA 2002 ; Appendix 17 Property Freezing Order ; Appendix 18 Civil Recovery Order by Consent ; Appendix 19 Financial Reporting Order ; Appendix 20 Proceeds of Crime Litigation in Northern Ireland ; Appendix 21 Overview of Money Laundering