Proceeds of Crime Act 2002
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Proceeds of Crime Act 2002 (2002 c. 29) is a United Kingdom law which provides for civil recovery of the proceeds from crime and created the Assets Recovery Agency.
Amongst other things the 2002 act made it easier to convict criminal suspects because prior to it being enacted prosecutors had to rely on the Drug Trafficking Act 1994 for offences of drug trafficking, and the Criminal Justice Act 1988 as amended by the Criminal Justice Act 1993 for proceeds of other crimes. In essence prior to 2002 a prosecuting lawyer had to prove that the monies or assets were the proceeds of crime and also what 'type' of crime the proceeds came from. The 2002 Act makes convictions more likely by removing the need to make a distinction between types of crime that made the money.
The first act of Parliament for England and Wales aimed at stripping criminals of illegally acquired gains was the Drug Trafficking Offences Act 1986. Scotland was provided with similar powers under the Criminal Justice (Scotland Act) 1987. These acts of Parliament were introduced following the House of Lords ruling that under the law as it then was some £750,0000 had to be returned to a gang of drug dealers. These proceeds had been traced to the defendants in a police operation codenamed “Operation Julie” in 1978. Powers for the courts to confiscate proceeds of crime were extended under the Criminal Justice Act 1988 and the Criminal Justice (Scotland) Act 1995. These Acts provided the courts with powers to confiscate proceeds of crime where an offence had been committed other than drug trafficking offences, in specified circumstances. Powers for the courts in Northern Ireland to confiscate proceeds in both drug trafficking and other offences was introduced by Criminal Justice (Confiscation) (Northern Ireland) Order 1990. These acts were amended by: Criminal Justice Act 1993, the Drug Trafficking Act 1994, the Proceeds of Crime (Scotland) Act 1995 and the Proceeds of Crime (Northern Ireland) Order 1996). These powers were draconian and apparently intended to be so by Parliament. Further more draconian powers were introduced under the Proceeds of Crime Act 2002 [1]
The Act is in twelve parts and embraces 12 schedules and 462 sections.
- PART 1: ASSETS RECOVERY AGENCY (Sections 1 - 5)
- PART 2: CONFISCATION: ENGLAND AND WALES (Sections 6 - 91)
- PART 3: CONFISCATION SCOTLAND Sections 92–154
- PART 4 CONFISCATION: NORTHERN IRELAND Sections 155–239
- PART 5: CIVIL RECOVERY OF THE PROCEEDS ETC.(Sections 240 - 316)
- PART 6: REVENUE FUNCTIONS (Sections 317 - 326)
- PART 7: MONEY LAUNDERING (Sections 327 - 340)
- PART 8: INVESTIGATIONS (Sections 341 - 416)
- PART 9: INSOLVENCY ETC (Sections 417 - 434)
- PART 10: INFORMATION (Sections 435 - 442)
- PART 11: CO-OPERATION (Sections 443 - 447)
- PART 12: MISCELLANEOUS AND GENERAL (Sections 448 - 462)
Contents |
[edit] Part 1
Sections 1 - 5 of the Proceeds of Crime Act 2002 provides for the establishment of the Assets Recovery Agency and for the Secretary of State to appoint its Director. The section gives the Director power to employ staff and delegate his function to staff to carry out his role. The office of Director has legal personality. The section makes it clear that Director must pay attention to guidance given by the Secretary of State which is calculated to contribute to the reduction of crime. The Assets Recovery Agency was provided with completely new powers by the Proceeds of Crime Act 2002. The new powers allow the Assets Recovery Agency to use the civil court procedures to recover the proceeds of unlawful conduct by way of an action in the High Court. Where there are reasonable grounds to suspect there is taxable income gain or profit the Agency also has the power to issue tax assessments.
On 11 January 2007, the Home Office laid a Written Ministerial Statement before Parliament setting out Government proposals to merge the Assets Recovery Agency (ARA) with the Serious Organised Crime Agency (SOCA), and to extend to prosecutors the power to launch civil recovery action under the Proceeds of Crime Act 2002.[2]
[edit] Part 2
Sections 6 - 91 deal with the transfer of power to make confiscation orders from the Magistrates Court and High Court to the Crown Court. The High Court can no longer make Restraint Orders or Charging Orders and the Magistrates Court must commit confiscation cases to the Crown Court. These changes apply to offences committed after the commencement of the act on 23 March 2003.
[edit] Part 7
A consequence of the Act is that solicitors, accountants, and insolvency practitioners who suspect their clients of tax evasion are now required to report them to the authorities without telling the clients they have done so, subject to a maximum punishment of 14 years in jail[1]. In addition to investigation of crime, this affects solicitors handling cases of divorce, where warring spouses often accuse each other of tax evasion, and the transfer of family assets to relatives.
If a client informs an accountant that he has done no more than wrongly claimed expenses on a tax return, the accountant is required secretly to report this to the authorities. The Association of Certified and Chartered Accountants said that "as things stand, when an honest mistake is made, for example on a declaration of taxable income, the accountant is faced with having to report this to the National Criminal Intelligence Service even when corrected figures have already been sent to the Inland Revenue. This is nonsense."
If a procedure is delayed because a legal or financial advisor has secretly reported a suspicion, the advisor cannot at the time or later—unless NCIS agrees—tell a customer that the delay was due to a report made under POCA, even if no action was taken[2]
Part 7 includes gains from acts carried out abroad which are criminal in Britain. It has been pointed out that technically a British lorry driver who is paid for transporting goods to France, and who drives on the right in France (a criminal offence in Britain); and a Spanish bullfighter (bullfighting is illegal in Britain) who buys property in London with money earnt in the bullring, fall foul of the Act.
[edit] Notes and references
- ^ Proceeds of Crime Act 2002 Commentary
- ^ Hansard: 11 Jan 2007 : Column WS19: Under-Secretary of State for the Home Department (Vernon Coaker) written Ministerial Statement.
[edit] External links
- Proceeds of Crime Act 2002 (2002 c. 29): full text of the act
