ASSET RECOVERY, RESTRAINT AND CONFISCATION
Asset Recovery, Restraint and Confiscation
The Proceeds of Crime Act 2002, and the legislation that preceded it, created wide powers to deprive individuals and businesses of their assets. Some of these powers are exercisable on the grounds of reasonable suspicion alone. Increasingly they are employed not only by the Crown Prosecution Service and the Serious Fraud Office, but by regulatory and local authority prosecutors, and by private prosecutors. Additionally, the Customs and Excise Management Act gives the UK authorities powers to seize and detain goods brought into the UK, as well as the vehicles used to transport them.
Foundry Chambers has members who are leaders in this field. We assist and represent individuals and businesses seeking to keep control of their assets, regularly appearing in the Crown Court, the High Court, magistrates’ courts, and the First Tier and Upper Tribunals in connection with this work. We also act for prosecutors and other applicants seeking orders from the court, and for third parties claiming an interest in assets.
In restraint proceedings, a court is requested to freeze the assets belonging to an individual or business. These orders are usually made without notice to the persons concerned, and can in some circumstances cripple an otherwise successful business. Members of Foundry Chambers act for persons affected by restraint orders in applications to discharge or vary, as well as for prosecutors or other applicants seeking orders from the court.
In confiscation proceedings following a conviction for a criminal offence, the prosecutor asks the court to order the defendant to pay a sum of money by way of confiscation, or to face a sentence of imprisonment in default. Members of Foundry Chambers represent prosecutors and defendants at confiscation hearings, at enforcement hearings, and on applications for the appointment of an enforcement receiver. Members also represent third parties: individuals or corporations who have an interest in assets said to be the property of the defendant, who are increasingly expected to raise any claim they have to assets during the confiscation proceedings.
Cash detention and forfeiture proceedings arise when the police or another investigating authority seize cash or cheques. Failure to contest the proceedings will result in the cash being forfeited. Members of chambers offer advice and representation to individuals and businesses whose cash has been seized, authorities applying for detention and forfeiture, and third parties claiming an interest in the cash.
When officers acting on behalf of the Director of Border Revenue or Her Majesty’s Revenue and Customs seize dutiable or prohibited goods, generally at a port or airport, the owner must take action to recover the goods if they are not to be permanently deprived of them. This can lead to magistrates’ court condemnation proceedings, or proceedings for restoration of seized goods in the First Tier Tax Tribunal. Members of Foundry Chambers offer advice and representation to importers and others with an interest in seized goods, as well as acting for the Director of Border Revenue and HMRC.