August EWJ 24 - Flipbook - Page 52
seized as a listed asset. That power of seizure is set out
at S303J (1) POCA:
This prevents an Applicant from simply alleging some
unknown crime; there must be more precision than
that (see Angus v UKBA [2011] EWHC 461 (Admin)).
A relevant officer may seize any item of property if the relevant
officer has reasonable grounds for suspecting that –
1. it is a listed asset,
2. it is recoverable property or intended by any person for use
in unlawful conduct, and
3. the value of it is not less than the minimum value.
Unlawful conduct means crime wherever it is committed, as long as it is unlawful under UK criminal law,
and if committed overseas, also unlawful there too.
ARA v Green & others [2005] EWHC (Admin) 3168 is
authority for the proposition that no claim for civil recovery can be based solely on evidence of lifestyle, i.e.
simply a lack of evidence of lawful income. But a failure to account for how a lifestyle was maintained, or
an explanation which was false, may well lead to an
inference that the property was recoverable – see ARA
v Olupitan [2008] EWCA Civ 104.
The ‘recoverable property’ test is well known and used in
both cash and AFO applications. So too is the ‘intended
by any person for use in unlawful conduct’ part of the test.
However, it is suggested that while it may be easy to
imagine that money (in cash or in a bank account)
might be used for future crime (the 2nd limb), it is difficult to see how a Rolex watch could be. In reality, it
is the first limb that it the most likely one to be utilised:
i.e. ‘recoverable property’. If the law enforcement agency
pleaded both limbs, that would tend to water down
any claim that their suspicion was ‘reasonable’ in the
sense that it was based on some coherent reason.
Conclusion
LAOs are here to stay. There may not be the same
sense or urgency when it is watch (even a Rolex watch)
that is detained rather than cash or a bank account
frozen. However, a client may want to make early challenges. One thing is for certain, we are going to be seeing a lot more LAOs.
What happens next?
After initial seizure, a process similar to that in cash
detention and AFO cases applies. The initial seizure is
only lawful for a limited period, namely 6 hours. After
that, a senior officer needs to authorise further detention. That authorisation adds a further 42 hours to the
police detention period, giving a total of 48 hours.
This is the same period that applies for cash/ AFO
cases, and excludes Bank Holidays and weekends.
References
[1] Home Office, Asset Recovery Statistical Bulletin:
Financial Years ending March 2018 to March 2023,
published 7th September 2023.
[2] Blackstone’s 2024, D8.29
Authors
Chloe Lennon
Financial Crime
Email: clerks@mountfordchambers.com
www.mountfordchambers.com
After this 48 hour period, any further detention must
be authorised by a magistrates’ court (s303L POCA).
An order of detention for up to 6 months may be
granted by the magistrates’ court, subject to a maximum 2 year extension period (s303L POCA). In other
words, the Rolex can be kept in detention and that detention can be extended by the Court up to the maximum period of 2 years and then the watch must be
released, or the police must make their application for
forfeiture. At that point, the test is not whether there
is a ‘reasonable suspicion’ that the watch is ‘recoverable property’. The test on a forfeiture application is
whether the watch has been proven to the civil
standard to be recoverable property.
Alvarez & Marsal Disputes and Investigations LLP
Expert Forensic Accountants
Alvarez & Marsal Experts have testified in court and arbitration hearings
worldwide. Setting a standard for robust expert accounting, valuation and
Challenging a LAO
To the client who asks: “Can I get my Rolex back?”, the
answer may be “yes”, or more accurately “possibly”. An
extension to detention applications can be resisted or,
alternatively, an application can be made on the client’s
behalf for the release of the Rolex under S303N.
economic evidence, our Experts’ evidence provide a basis for assessment of quantum
claims in major litigation and arbitration matters whenever and wherever a dispute
arises. Our Experts are recognised globally as leaders in their field.
Our experience covers UK High Court, Hong Kong, Singapore and US courts;
ICC, LCIA, DIAC, HKIAC, SIAC, ICSID and UNCITRAL arbitrations.
Our disputes practice, with offices worldwide, deals with issues of accounting,
economics, valuation, quantum, technology and construction disputes.
Additionally, many of our senior people have spent a career in industry before
joining A & M, thus providing law firms access to real world expertise.
There is still no specific case law on this section, but
practitioners can utilise the abundant authorities available on ‘recoverable property’ and ‘reasonable suspicion’. In summary, it is important to keep in mind that
the ‘recoverable property’ is simply ‘property obtained
through unlawful conduct’ (s242 POCA). The reference to ‘obtained’ is expanded upon at S242 (2)(b):
‘it is not necessary to show that the conduct was of a particular kind if it is shown that the property was obtained through
conduct of one of a number of kinds, each of which would
have been unlawful conduct’
EXPERT WITNESS JOURNAL
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Mr Luke Steadman: FCA (2010) - Mr Julian Jones: ACA (1993) - Richard Slark
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We have experience of;
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Qualified/professionally competent to undertake the following forms of ADR:
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within the past 3 years: 15-20, Number of new instructions from solicitors
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AUGUST 2024
