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Recovery of cash and listed assets under POCA 2002: new and revised Codes of Practice

The Secretary of State for the Home Department has recently published two Codes of Practice – one new and one revised – which provide guidance on the appropriate and proportionate use of powers under the Proceeds of Crime Act 2002 (‘POCA’) – note that the enactments on legislation.gov.uk have not, at the date of this blog post, been updated to reflect recent amendents. These Codes came into force on 16 April 2018. They were drafted in order to take account of various amendments made to POCA by the Criminal Finances Act 2017 (‘CFA’), which received Royal Assent on 27 April 2017.

Recovery of cash: search powers

The Code of Practice issued under s 292 POCA relates to police offers’ exercise of powers under Part 5 of POCA. There are four notable amendments to the substantive guidance.

First, the Code incorporates the broader definition of ‘cash’ under s 289(6), which now includes gaming vouchers, fixed-value casino tokens and betting receipts.

Secondly, the Code now correctly reflects the wording of s 292(7), which relates to the use of the Code in civil or criminal proceedings following officers’ failing to comply with provisions of the Code. Whereas the 2016 code provided that a court ‘may take account of any failure to comply with the code in determining any question(s) in the proceedings’, the new paragraph 11 states that the Code “is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant” (emphasis added).

The third notable amendment relates to officers’ seeking approval from a senior officer under s 290(4) POCA for the purposes of exercising their search powers under s 289 in circumstances where it is not practicable to obtain judicial approval of the same. Paragraph 41 of the Code reflects the amendments made by the CFA to ss 289-290, which now confer on officers of the Serious Fraud Office a power to search premises for suspected recoverable property.

The fourth change relates to the preparation of a report in circumstances where an officer conducts a search under s 289 POCA without prior judicial approval but where either (i) no cash is seized or (ii) any cash is seized and is detained for no more than 48 hours. Such a report must, in essence, explain why that officer considered that the search power was exercisable and why it was not practicable to obtain judicial approval (s 290(7)). However, paragraph 49 of the Code now reflects the new s 290(6A), which provides that such a report does not have to be prepared where, during the search for cash, a listed item of property is seized under s 303J and detained for more than 48 hours. Section 303J is a new section conferring the power to seize a (suspected) ‘listed asset’, the definition of which includes precious metals, precious stones, watches, artistic works, face-value vouchers and postage stamps (s 303B(1)(a)).

Interestingly, this revised Code has replaced nearly all instances of the words ‘practicable’ and ‘impracticable’ with ‘practical’ and ‘impractical’. Since no similar amendment was made to POCA, it is assumed that this is simply intended to make the guidance more user-friendly. Both words come from the same root – the French adjective practicable from the verb pratiquer.

Recovery of listed assets: search powers

The second Code of Practice, which was issued under s 303G POCA, relates to the new power under s 303C to search premises, vehicles and persons for seizable listed assets (the definition of which is provided above; s 303B(1)(a)). This new power was introduced by the CFA.

In terms of format, it is largely similar to the Code relating to the recovery of cash. In particular, it provides guidance relating to the scope of the search power; reasonable grounds for suspicion; approval from judicial officers and senior officers; steps to be taken prior to searching persons, vehicles or premises; and the relevant recording requirements.

Given its similarity to the Code relating to the recovery of cash, it is hoped that this second Code will feel familiar to law enforcement officers who are seeking to exercise their powers under the new provisions of POCA.