Cash Seizure | Retention Period
The Proceeds of Crime Act 2002 (‘POCA’) enables cash seizures by investigators, where the amount involved is in excess of one thousand pounds, where they believe that:
- such cash represents the proceeds or crime or
- it is intended for use by any person in the pursuit of unlawful conduct.
Such detained cash may be retained:
- initially, for forty-eight hours, whereafter an Application has to be made to the Magistrates’ Court for an extension of time for the cash to be retained for a further six months and
- thereafter, further extensions of the Order may be sought for leave to hold the cash for up to two years from the date when the first Court Order was obtained.
In the recent case of Kingdom Corporate v Commissioner for HMRC, an issue arose as to whether the Application made to the court seeking the continued detention of cash which had been seized was outside the permitted forty-eight hours time limit.
For more than twenty-five years, KANGS Solicitors has been dedicated to representing a diverse range of clients, including businesses and private individuals, in reclaiming cash seized by law enforcement agencies. Amandeep Murria provides insights on a recent case heard by the Divisional Court.
Kingdom Corporate v Commissioner for HMRC
The Circumstances
Having seized the sum of £350,000 in sterling and £50,000 in foreign currency in January 2023, HMRC was required to apply to the Court for the continued detention of the cash within forty-eight hours and by 5.38 pm. on the last day for legal retention.
Although all parties attended Thames Magistrates’ Court at 2pm., administrative delays resulted in HMRC not being able to present its Application to the Court until approximately 4pm, at which time it was made clear the Application had to be concluded by 5.30 pm., to comply with POCA.
The court room assigned to hear the application, inexplicably, was closed at 5.00pm with the result that another court room had to be allocated.
The Hearing of the Application re-commenced at 5.20 pm and the Court granted the Order for the continued detention of the cash seized at 5.48 pm.
The Court Order was challenged ‘on a point of principle’ as the Application by HMRC was authorised outside the strict forty-eight hour rule imposed by POCA.
The Application for Judicial Review
The Divisional Court dismissed the application for Judicial Review ‘on a point of principle’ ground which was relied upon.
Judicial Comment:
Lord Justice Bean, with whom Mrs Justice Tipples agreed, found:
‘It would be extraordinary if the 48-hour time limit on lawful detention had such a decisive effect. There would also be serious practical difficulties for the courts. Applications to renew the detention of cash, where the initial seizure was in the late afternoon or evening, would either have to be heard the next day (giving the person from whom the cash was seized no time to prepare) or given priority ahead of other urgent business, including custody cases.
‘Even then the case could be beset by any…routine mishaps. Further, while there is no suggestion of time-wasting in the present case, the prospect of an unscrupulous advocate trying to run down the clock may not be entirely fanciful.’
Dismissing the judicial review application, the judge said HMRC ‘had done everything they reasonably could to obtain a hearing: the fault lay with the court system, not with them’.
How Can We Help?
Any Seizure or Freezing Order, whether affecting bank accounts, cash or other assets, can have a devastating effect on individuals and their family and may well jeopardise the survival of their business.
The Team at KANGS enjoys nationwide recognition for its work on behalf of clients faced with Restraint and Seizure Orders and all aspects of POCA. We work proactively with our clients and seek to engage in early dialogue and negotiations with all law enforcement agencies with the intent of achieving a prompt, favourable and cost-effective resolution.
Should you require our assistance, please contact using the details below.
Tel: 0333 370 4333
Email: info@kangssolicitors.co.uk
We provide an initial no obligation consultation from our offices in London, Birmingham, and Manchester. Alternatively, we provide initial consultations by telephone or video.
