Forfeiture

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Forfeiture

Sep 1, 2020, 23:34 PM
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https://www.lexisnexis.com/uk/lexispsl/corporatecrime/document/391423/592G-P1D1-F188-33KS-00000-00
Forfeiture#The power of the court to order the forfeiture of property under the PCC(S)A 2000#Other statutory powers of forfeiture #Forfeiture under the Misuse of Drugs Act 1971#Meaning of 'person'#Meaning of 'drug trafficking offence'#What property can be forfeited?#Forfeiture under the Prevention of Crime Act 1953#Forfeiture of cash under the Proceeds of Crime Act 2002#Forfeiture of indecent images of children#Forfeiture under the Firearms Act 1968#Forfeiture and other sentences
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This Practice Note covers the law on the forfeiture of property connected with the commission of a criminal offence. It covers the power of the court to order forfeiture of property under the Powers of Criminal Courts (Sentencing) Act 2000 (PCC(S)A 2000) and other statutory powers of forfeiture. It also covers forfeiture under the Misuse of Drugs Act 1971 (MDA 1971) including the meaning of ‘person’, the meaning of ‘drug trafficking offence’ and what property can be forfeited. It also covers forfeiture under the Prevention of Crime Act 1953 (PCA 1953) and forfeiture under the Proceeds of Crime Act 2002 (POCA 2002), forfeiture of indecent images of children, forfeiture under the Firearms Act 1968 (FA 1968) and forfeiture in addition to other sentences.

The power of the court to order the forfeiture of property under the PCC(S)A 2000

The Powers of Criminal Courts (Sentencing) Act 2000 is the principal source of the court's power to order the forfeiture of property connected with the commission of a criminal offence. The order is known as a 'deprivation order' and can be made by the Crown Court or a magistrates' court, in respect of any offence.

See Restitution and deprivation orders.

Other statutory powers of forfeiture

The court's other powers of forfeiture are contained in statutes that create particular criminal offences. Reference should be made to an individual statute to identify whether, provision is made for the forfeiture of property in respect of the offences that it creates.

Examples of some of the most common statutes containing forfeiture provisions are considered below.

Forfeiture under the Misuse of Drugs Act 1971

A Crown Court or a magistrates' court can make a forfeiture order under the Misuse of Drugs Act 1971 (MDA 1971) if:

  1. a person

  2. has been convicted of an offence under the MDA 1971 or a 'drug trafficking offence' and

  3. property

  4. is shown to relate to the offence

Meaning of 'person'

By virtue of the Interpretation Act 1978 (IA 1978) the term 'person' includes a body of persons incorporate eg a company or an unincorporated association eg a club.

Meaning of 'drug trafficking offence'

A 'drug trafficking offence' is expressly stated to include an offence specified in the Proceeds of Crime Act 2002, schedule 2, paragraph 1 or so far as it relates to those provisions.

For the principal offences created under the MDA 1971 see Possession with intent to supply

What property can be forfeited?

The MDA 1971 gives the court power to make a forfeiture order in respect of 'anything' which relates to the offence.

Only a defendant's personal property can be forfeited. 'Real property' or immovable property cannot be taken eg a defendant's home.

The provisions do not apply to intangibles, or to property outside the jurisdiction of the English courts.

The courts have also held that an order should not be made where the property is subject to joint ownership. See R v Troth (1980) 71 Cr App R 1.

An order cannot be made unless the property relates to the offence for which the offender has been convicted. In R v Boothe it was held that in the case of a defendant convicted of possession of cocaine found hidden in his car, a forfeiture order could not be made in respect of cash also found in his possession. See R v Booth (1987) 9 Cr App R (S) 8.

Where there is a dispute about whether or not property relates to an offence, the courts have held that a defendant must be permitted to call evidence. See R v Churcher (1986) 8 Cr App R (S) 94.

The MDA 1971 expressly provides that a court cannot make a forfeiture order where a person claiming to be the owner or otherwise interested in the property, applies to the court to show why the order should not be made, unless the court has given him an opportunity to be heard.

Forfeiture under the Prevention of Crime Act 1953

The following Corporate Crime practice notes provides comprehensive and up to date legal information on Forfeiture

The power of the court to order the forfeiture of property under the PCC(S)A 2000

The Powers of Criminal Courts (Sentencing) Act 2000 is the principal source of the court's power to order the forfeiture of property connected with the commission of a criminal offence. The order is known as a 'deprivation order' and can be made by the Crown Court or a magistrates' court, in respect of any offence.

See Restitution and deprivation orders.

Other statutory powers of forfeiture

The court's other powers of forfeiture are contained in statutes that create particular criminal offences. Reference should be made to an individual statute to identify whether, provision is made for the forfeiture of property in respect of the offences that it creates.

Examples of some of the most common statutes containing forfeiture provisions are considered below.

Forfeiture under the Misuse of Drugs Act 1971

A Crown Court or a magistrates' court can make a forfeiture order under the Misuse of Drugs Act 1971 (MDA 1971) if:

  1. a person

  2. has been convicted of an offence under the MDA 1971 or a 'drug trafficking offence' and

  3. property

  4. is shown to relate to the offence

Meaning of 'person'

By virtue of the Interpretation Act 1978 (IA 1978) the term 'person' includes a body of persons incorporate eg a company or an unincorporated association eg a club.

Meaning of 'drug trafficking offence'

A 'drug

The power of the court to order the forfeiture of property under the PCC(S)A 2000

The Powers of Criminal Courts (Sentencing) Act 2000 is the principal source of the court's power to order the forfeiture of property connected with the commission of a criminal offence. The order is known as a 'deprivation order' and can be made by the Crown Court or a magistrates' court, in respect of any offence.

See Restitution and deprivation orders.

Other statutory powers of forfeiture

The court's other powers of forfeiture are contained in statutes that create particular criminal offences. Reference should be made to an individual statute to identify whether, provision is made for the forfeiture of property in respect of the offences that it creates.

Examples of some of the most common statutes containing forfeiture provisions are considered below.

Forfeiture under the Misuse of Drugs Act 1971

A Crown Court or a magistrates' court can make a forfeiture order under the Misuse of Drugs Act 1971 (MDA 1971) if:

  1. a person

  2. has been convicted of an offence under the MDA 1971 or a 'drug trafficking offence' and

  3. property

  4. is shown to relate to the offence

Meaning of 'person'

By virtue of the Interpretation Act 1978 (IA 1978) the term 'person' includes a body of persons incorporate eg a company or an unincorporated association eg a club.

Meaning of 'drug trafficking offence'

A 'drug

trafficking offence' is expressly stated to include an offence specified in the Proceeds of Crime Act 2002, schedule 2, paragraph 1 or so far as it relates to those provisions.

For the principal offences created under the MDA 1971 see Possession with intent to supply

What property can be forfeited?

The MDA 1971 gives the court power to make a forfeiture order in respect of 'anything' which relates to the offence.

Only a defendant's personal property can be forfeited. 'Real property' or immovable property cannot be taken eg a defendant's home.

The provisions do not apply to intangibles, or to property outside the jurisdiction of the English courts.

The courts have also held that an order should not be made where the property is subject to joint ownership. See R v Troth (1980) 71 Cr App R 1.

An order cannot be made unless the property relates to the offence for which the offender has been convicted. In R v Boothe it was held that in the case of a defendant convicted of possession of cocaine found hidden in his car, a forfeiture order could not be made in respect of cash also found in his possession. See R v Booth (1987) 9 Cr App R (S) 8.

Where there is a dispute about whether or not property relates to an offence, the courts have held that a defendant must be permitted to call evidence. See R v Churcher (1986) 8 Cr App R (S) 94.

The MDA 1971 expressly provides that a court cannot make a forfeiture order where a person claiming to be the owner or otherwise interested in the property, applies to the court to show why the order should not be made, unless the court has given him an opportunity to be heard.

Forfeiture under the Prevention of Crime Act 1953

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  • Civil and financial penalties and ancillary orders
  • Corporate Crime
  • Environment
  • Environmental enforcement and prosecutions
  • Environmental sanctions and prosecutions
  • Sentence and prison law
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