On 19th November, 6 KBW College Hill in London published a commentary about the cash forfeiture powers found in Part 5 of the proceeds of Crime Act 2002. A fascinating article, raising important points and, to me at least, seemingly a case of overkill and unnecessary harshness and hardly worth the cost (in administrative and court cost terms) of the forfeiture action itself. It notes that in the financial year 2018/19, a record £51 million was collected. It says that a case highlighted some unanswered questions in relation to one strand of cash forfeiture, where cash is forfeited on the basis that it is “intended by any person for use in unlawful conduct”. The author says that this aspect of cash forfeiture, where the courts do not even have to be satisfied that there has not yet been any criminal conduct, is the focus of this article. What, it asks, are the parameters of that power and how might it have been misapplied? The article starts by setting out the basics – an authorised person (e.g. a police constable or an accredited financial investigator) may search for or seize cash that they reasonably suspect to be: (a) recoverable property (i.e. the proceeds of unlawful conduct); or (b) intended by any person for use in unlawful conduct – and which is at least £1,000. This article is concerned with that second possibility. The case referred to is the unreported case of Home Office v MK, involving a man who entered the UK as a tourist but then claimed asylum, and where £1,000 in a bank account was seized. The Crown Court ordered forfeiture of the cash (seemingly the man’s only source of support, as he was subsequently discovered sleeping rough) on the grounds that the cash had been intended for use in an attempt to obtain leave to enter the UK by deception (an offence under section 24A of the Immigration Act 1971).
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