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Trainees and Solicitor Wannabes
 Criminal Solicitor Dot NetTrainees and Solicitor Wannabes
Subject Topic: Bill of Rights 1689 and cash forfeitures. Post ReplyPost New Topic
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Ron Barker
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Posted: 09 February 2010 at 16:34 | IP Logged Quote Ron Barker

Quote: David Winch
Ron Using the toolbar to create a link works when I am using Internet Explorer but (for me at least) does not work when I am using Firefox. So if I intend to put a link in a posting I need to use IE to login to the website and create the post.

David

Sorry, I did not see your post until now.  I use a word document for making notes for wiki, so it is handy for checking and making links to be posted.

What I do is:

Copy and paste the url onto the word document;

Make sure the curser is at the end of the url and press the spacebar, that should make the url live;

Hover the curser over the live url and right click; a short menu will appear;

Click on 'Edit hyperlink', a dialogue box will open;

At the top of the dialogue box you will see the url and to the left 'Text to Display';

Delete the url and type the text you would like to display.

Sounds a bit complicated but it's not once you have done it!

Cheers

 

 

 



Edited by Ron Barker on 09 February 2010 at 16:36
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David Winch
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Posted: 09 February 2010 at 16:50 | IP Logged Quote David Winch

Ron

Thanks for that!

David
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PeterJM
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Posted: 10 February 2010 at 02:30 | IP Logged Quote PeterJM

David
 
Is there a decision of the Europen Court which upholds cash forfeitures without conviction that you are aware of?
 
Peter
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David Winch
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Posted: 10 February 2010 at 07:47 | IP Logged Quote David Winch

Peter

There are European Court decisions in which appeals against civil recovery were lost on the basis that these were not criminal proceedings and therefore the protections in relation to criminal proceedings did not operate.

Part of the argument was that no penalty was involved - the proceedings simply took off the subject assets which he ought not have had in the first place.

See WALSH v UNITED KINGDOM - 43384/05 [2006] ECHR 1154

David
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PeterJM
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Posted: 10 February 2010 at 08:47 | IP Logged Quote PeterJM

Quote: David Winch
Peter

There are European Court decisions in which appeals against civil recovery were lost on the basis that these were not criminal proceedings and therefore the protections in relation to criminal proceedings did not operate.

Part of the argument was that no penalty was involved - the proceedings simply took off the subject assets which he ought not have had in the first place.

See WALSH v UNITED KINGDOM - 43384/05 [2006] ECHR 1154

David

Thanks David

I see a distinction, albeit perhaps of not much importance between WALSH and cash forfeiture;  that being that WALSH had a substantial criminal record and was found by the Judge to have a Criminal Lifestyle; so I suppose it could be argued that the civil recovery order against him could be viewed as part of the sentencing for his previous crimes; whereas many people subjected to cash forfeitures have not been found to have a criminal lifestyle and have no criminal convictions?

Peter



Edited by PeterJM on 10 February 2010 at 09:20
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David Winch
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Posted: 10 February 2010 at 13:16 | IP Logged Quote David Winch

Peter

In order to obtain forfeiture of cash the Crown (perhaps I should say 'the applicant') must satisfy the court, on the balance of probabilities, that the cash is 'recoverable property' (as defined).

Similarly the court must be satisfied that an asset is 'recoverable property' before making an order for civil recovery of that asset.

However the actual procedures in court in these two circumstances are different.

Clearly if cash / property is in the possession of someone who has a criminal record of acquisitive crime that will be a factor which the court may take into account.

But it would be wrong to view the forfeiture / civil recovery which results in a loss of cash / assets for the defendant to be part of the sentencing for his past crimes.  Indeed I think if Mr Walsh could have persuaded the European Court to view it in that way he would have won his case (on the basis that he would then be eligible for the protections afforded to an individual being dealt with for a criminal offence).

I am sure there will have been civil recovery /cash forfeiture proceedings taken in cases where the individual concerned has no criminal convictions whatsoever, but it is nevertheless contended that the assets or cash in question are recoverable property.

David


Edited by David Winch on 11 February 2010 at 02:29
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PeterJM
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Posted: 11 February 2010 at 04:46 | IP Logged Quote PeterJM

Quote: David Winch
Peter

In order to obtain forfeiture of cash the Crown (perhaps I should say 'the applicant') must satisfy the court, on the balance of probabilities, that the cash is 'recoverable property' (as defined).

Similarly the court must be satisfied that an asset is 'recoverable property' before making an order for civil recovery of that asset.

However the actual procedures in court in these two circumstances are different.

Clearly if cash / property is in the possession of someone who has a criminal record of acquisitive crime that will be a factor which the court may take into account.

But it would be wrong to view the forfeiture / civil recovery which results in a loss of cash / assets for the defendant to be part of the sentencing for his past crimes.  Indeed I think if Mr Walsh could have persuaded the European Court to view it in that way he would have won his case (on the basis that he would then be eligible for the protections afforded to an individual being dealt with for a criminal offence).

Agreed: that was not a well thought out contention even though it is not far away from the reality of the position of such a defendant because that is essentially what the law is saying to him: 'you have acquired this from criminal conduct so we are going to take it from you'.

I am sure there will have been civil recovery /cash forfeiture proceedings taken in cases where the individual concerned has no criminal convictions whatsoever, but it is nevertheless contended that the assets or cash in question are recoverable property.

David

What is your view about the applicant in a cash forfeiture case having to prove that the cash sought to be forfeited is the product of criminal conduct of a kind or kinds as is required under part 5 of PoCA? It occurs to me that that must be so and a defendant to such an application would be bound to succeed if the applicant was unable to establish what seems to me to be an essential element of such a claim without the defendant having to say anything about where the cash came from.  There are exceptions to that general rule where the evidence is overwhelming that the cash is either the product of criminal conduct or is going to be used to facilitate criminal conduct such as cases like R v F where people are arrested at airports with huge sums of cash and are clearly intending to take it out of the country.



Edited by PeterJM on 28 February 2010 at 07:37
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PeterJM
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Posted: 23 February 2010 at 10:19 | IP Logged Quote PeterJM

David
 
As I understand the position: an appeal lies to the Crown Court in the form of a rehearing from a decision of a Magistrates Court to forfeit cash?  Does an appeal lie to any of the appellate courts from a decision of the Crown Court to uphold a forfeiture order made by a Magistrates Court?
 
Peter
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PeterJM
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Posted: 03 March 2010 at 11:02 | IP Logged Quote PeterJM

 
  1. Where does this leave the constitutional position which I have stated? Mr Shrimpton would say that Factortame (No 1) was wrongly decided; and since the point was not argued, there is scope, within the limits of our law of precedent, to depart from it and to hold that implied repeal may bite on the ECA as readily as upon any other statute. I think that would be a wrong turning. My reasons are these. In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental: see for example such cases as Simms [2000] 2 AC 115 per Lord Hoffmann at 131, Pierson v Secretary of State [1998] AC 539, Leech [1994] QB 198, Derbyshire County Council v Times Newspapers Ltd. [1993] AC 534, and Witham [1998] QB 575. And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law. It may be there has never been a statute having such profound effects on so many dimensions of our daily lives. The ECA is, by force of the common law, a constitutional statute.

  2. Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature's actual not imputed, constructive or presumed intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the Bill pursuant to Pepper v Hart [1993] AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute.
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SOFAP
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Posted: 07 March 2010 at 10:44 | IP Logged Quote SOFAP

Quote: David Winch
Ron

Using the toolbar to create a link works when I am using Internet Explorer but (for me at least) does not work when I am using Firefox.

So if I intend to put a link in a posting I need to use IE to login to the website and create the post.

David


I use Firefox and can post links. 

www.pacso.co.uk

You may need to delete the http: bit before pasting the link in, if it already has http: in the bit you have copied from.


Edited by SOFAP on 07 March 2010 at 10:45
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