August EWJ 24 - Flipbook - Page 63
Act 2020) could be used to rescind a decision not to
make a confiscation order and whether an appeal lay
from that decision; the effect of making a financial
order in breach of section 15(2) on the jurisdiction of
the Crown Court to proceed with confiscation; and
whether the prosecution could appeal where they
themselves had withdrawn the application for a
confiscation order based on their own erroneous
interpretation of Iqbal [2010] EWCA Crim 376.
sentences the defendant for the offence or postpone the
proceedings for a specified period, which s14(5) sets out
is 2 years starting from the date of conviction. A postponement or extension may be made on application by
the defendant, the prosecutor or the court of its own
motion (s14(7)). If such an application to extend the
period is made before the period ends, the application
may be granted even after the period ends (s14(8)).
Court of Appeal judgment
The judgment was reached after the court applied the
principles derived from the leading decision of the
House of Lords (Soneji [2005] UKHL 49) and the subsequent decision of the Supreme Court in Guraj
[2016] UKSC 65 to the construction of s6 and s14 of
the Proceeds of Crime Act 2002. In the majority of the
cases under appeal, counsel and/or the judge had
been swayed by the Court of Appeal decision in Iqbal
[2010] EWCA Crim 376, which was held to have been
wrongly decided.
Statutory Framework – The Proceeds of Crime Act
2002
S31(2) of the Act enables the Crown to appeal, with
leave, against a decision of a Crown Court judge not
to make a confiscation order. S32 notes that on appeal
the Court of Appeal may confirm the decision or if it
believes the decision was wrong it may either proceed
under s6 or direct the Crown Court to proceed afresh
under s6.
S6 is the basic section setting the framework for the
making of an order, including considering whether
the defendant has a criminal lifestyle and if he has benefited from his general criminal conduct and whether
he has benefited from his particular criminal conduct.
If the court deems that the defendant has benefited
from a criminal lifestyle or conduct it must decide the
available amount and make a confiscation order requiring him to pay the lower of the two figures, the
recoverable amount.
The court confirmed that if confiscation proceedings
have not concluded before sentence, they may be
started and postponed so that they conclude after
sentence. The commencement and postponement of
the proceedings must take place before the court is
functus officio. A court becomes functus officio in a criminal case when sentence has been imposed and time
for variation or recission of the sentence under s385 of
the Sentencing Act 2020 has lapsed, which is 56 days
from the imposition of the sentence. The Court held
that the postponement provision under s14 of the
S14 is the section setting out the timetable. The court
may make a confiscation order under s6 before it
Mr Ross S. Delston
CAMS, CTCE
Attorney + Expert Witness - Anti-Money Laundering Compliance
Ross S. Delston is an independent American attorney, Certified Anti-Money Laundering Specialist (CAMS),
Cryptocurrency Tracing Certified Examiner (CTCE), and former U.S. banking regulator (FDIC) with over 40
years of experience in the financial services sector. He has specialized in Anti-Money Laundering / Countering
the Financing of Terrorism (AML/CFT) issues for over 20 years.
Ross has acted as a testifying or consulting expert on AML issues in numerous civil and criminal cases,
including on behalf of the U.S. Attorney’s Office, Southern District of New York, in U.S. v. Prevezon, a civil
forfeiture case involving the proceeds of a massive Russian fraud. He testified virtually on behalf of plaintiffs in
a Toronto court for over three days in Joint Liquidators of Stanford International Bank v. Toronto-Dominion
Bank, arising out of one of the largest Ponzi schemes in recent decades.
Ross has been a consultant to the International Monetary Fund (IMF) since 1997 on AML/CFT and banking
matters and has participated in the AML/CFT assessments of nine offshore financial centers, including Saint
Vincent, Bermuda, and Jersey. He has also been a consultant to the World Bank, 1998 – 2014, on banking
regulation, resolution, and systemic crisis issues.
Ross has been quoted on AML and banking subjects in the New York Times, Times of London, Washington
Post, New Yorker, Wall Street Journal, Reuters, the Nikkei (Japan), and the Hindu Business Line (India).
He also speaks on these topics at conferences and seminars throughout the world.
Area of work: Worldwide
Tel: +1 (202) 494-5835 - Email: ross@globalaml.com
Fax:+1 (202) 280-1465 - Website: www.linkedin.com/in/rossdelston
EXPERT WITNESS JOURNAL
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