The Proceeds of Crime Act (2020 Revision)

The Proceeds of Crime Act (POCA) enables police and customs officers to seize cash  from individuals, where it is suspected the cash is the proceeds of criminal conduct or intended for use in criminal conduct.

It is likely that officers will find cash linked to criminal conduct during the course of their duties. This could be during any criminal investigation and particularly when searching persons, premises and vehicles.

The seizure of cash is a civil process which can often run alongside a criminal investigation.

It is an early intervention, often taking currency out of circulation enabling a criminal investigation to develop, possibly resulting in criminal charges being laid.

Cash seizure, detention and forfeiture is a civil procedure and does not require the suspect to charged or convicted of a crime.

Officers should use their discretion and take account of all the circumstances associated with any cash found. Their actions must be proportionate, non-discriminatory, accountable and necessary.

Conditions

Cash seizure powers requires reasonable grounds for suspicion that the facts meet the conditions necessary for seizure of cash.

An officer may seize cash under POCA if the following conditions apply; and

Their presence at any premises or address is lawful (e.g., warrant to search).

There are reasonable grounds to suspect that the cash is recoverable property (obtained by unlawful conduct) or is intended for use by any person in unlawful conduct.

Grounds for Suspicion

There must be some objective grounds for suspicion based on facts, information and/or intelligence.

The following factors are commonly applied;

• how the individual or premises were identified

• previous intelligence on persons or premises

• previous involvement with persons or premises

• Suspected links with criminal activities whether in the Cayman Islands or overseas.

• Evidence of a luxury lifestyle without verifiable means.

Procedure on seizure

The officer is required to give the person in possession of the cash a receipt. The receipt should describe the total amount seized and from whom. In addition, a Form A should be provided.

Within 48 hours (not including weekends and public holidays)) the officer must apply to the Summary Court for an order authorizing further detention of the cash.

The Summary Court on hearing evidence, may authorize detention up to 3 months.

After the initial 3 months, a further order can be sort for further detention for up to 2 years.

Release of the cash

If enquiries subsequently reveal that the cash originates from legitimate means it should be returned to the owner and no further Court applications are necessary.

Applying for forfeiture

If any related criminal case is successful – the cash can be included in any confiscation order amount.

If any related criminal case is unsuccessful – the cash forfeiture proceedings may continue provided that it can be shown on the balance of probabilities that the cash (or part of it) is recoverable property or was intended for use in unlawful conduct. If not, The Court will order the release of the cash.

For more details on how our experienced and dedicated team can help you, please contact:

Greg Burke

E-mail: gburke@mcgrathtonner.com

Tel: +1 345 949 2740

This article is for information purposes only and does not purport to be comprehensive or represent legal advice.