Difficult one that. They ruled against me on the application but we are now part heard on the forfeiture hearing which seems to be going ok. My client is paying privately and I get the impression he prefers the idea of more lengthy cross examination of the customs officer and the police officer who is giving hearsay about other relevant conduct than more legal arguments

I have to advise him but the final decision is his. I suspect he will want to continue with the part heard hearing as he said to me at the end of the afternoon "well...even if we don't win and I lose the money...at least we've had some f****** fun watching them squirm in court"

I do hope that your client instructs you to pursue the Bill of Rights point.  There are no real disscenters on this site so far.

Peter

Well unfortunately as I was only instructed at the last minute I was unable to put the court and UK Border Agency on notice of my argument so as you can imagine I was not popular when I turned up in the morning complete with my skeleton argument and authorities.

Counsel for the other side opposed simply by claiming that the Bill of Rights was referring to sentences without conviction (as clearly there has been case law to say that civil forfeiture is not a sentence) therefore it was not conflicting with Section 298 of POCA.

The legal advisor declined to give the Bench any advice stating that as it was a novel point of constitutional law which she had never heard argued before she would have to do a considerable amount of research before properly advising them so they would have to decide on submissions and the papers before them.

The Bench decided they could not make a decision that a piece of primary legislation was void and they had to assume that parliament was clear in its intentions notwithstanding there having been no express repeal.

Whilst the decision and reasons were clearly flawed, they were in a very difficult position having such an argument placed in their laps without notice!

The hearing proceeded and has now gone part heard until June so I will not know if my client wants to appeal and take it to the next level until the the final decision is made then.

Agreed. I think in the absence of any advice from the legal advisor, the bench have clearly misdirected themselves and that in itself is open to review but I will see what my client says.

Well unfortunately as I was only instructed at the last minute I was unable to put the court and UK Border Agency on notice of my argument so as you can imagine I was not popular when I turned up in the morning complete with my skeleton argument and authorities.

The legal adviser made a bit of fuss but the Bench agreed to hear my argument which was made in the form of an application to stay.

Counsel for the other side opposed simply by claiming that the Bill of Rights was referring to sentences without conviction (as clearly there has been case law to say that civil forfeiture is not a sentence) therefore it was not conflicting with Section 298 of POCA.

There has, so far as I have been able to find, no case law which establises that civil forfeiture has been upheld by the ECHR as distinct from there being case law in the ECHR that upholds civil confiscation following conviction and civil recovery (so long as the court finds that the respondent has a criminal lifestyle) but where a respondent to an application for civil forfeiture does not fit into any of the above criteria, I feel that there is a good chance of the domestic courts struggling  not to grant an application under the BOR to dismiss a claim for civil forfeiture of cash and such an application may well also fail in the ECHR.

The Bill of Rights clearly refers to forfeiture, not sentences.  If counsel seeks to assert that a different meaning to the word: forfeiture applied when the BOR was enacted; then surely the burden on proving that rests with him?

Peter 

The legal advisor declined to give the Bench any advice stating that as it was a novel point of constitutional law which she had never heard argued before she would have to do a considerable amount of research before properly advising them so they would have to decide on submissions and the papers before them.

The Bench decided they could not make a decision that a piece of primary legislation was void and they had to assume that parliament was clear in its intentions notwithstanding there having been no express repeal.

Whilst the decision and reasons were clearly flawed, they were in a very difficult position having such an argument placed in their laps without notice!

The hearing proceeded and has now gone part heard until June so I will not know if my client wants to appeal and take it to the next level until the the final decision is made then.

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

Peter

Have a look at R v Payton [2006] EWCA Crim 1226

This was one of those cases where a cash seizure was being run parallel with criminal proceedings and highlights the associated risks this generates to the fairness of proceedings as a whole. The defence made the following observation;

"There is a real potential unfairness for a defendant to be put in the position of giving evidence on oath about matters which could affect his criminal trial before his criminal trial takes place. If the defendant chooses not to give such evidence, it might well result in forfeiture of cash seized before his criminal trial has concluded, or even started". The protection provided for defendants by section 17(6) of the 2002 Act, in Part 2 dealing with confiscation proceedings, does not exist in Part 5, it is submitted.

So (in my experience) where there is a cash seizure and a criminal matter it is best to let the trial run its course first. If there is a conviction then the forfeiture application usually goes off unopposed. The case serves to highlight the disconnect in the two processes as between CPS and those instructed separately by the police.

Peter

Have a look at R v Payton [2006] EWCA Crim 1226

This was one of those cases where a cash seizure was being run parallel with criminal proceedings and highlights the associated risks this generates to the fairness of proceedings as a whole. The defence made the following observation;

"There is a real potential unfairness for a defendant to be put in the position of giving evidence on oath about matters which could affect his criminal trial before his criminal trial takes place. If the defendant chooses not to give such evidence, it might well result in forfeiture of cash seized before his criminal trial has concluded, or even started". The protection provided for defendants by section 17(6) of the 2002 Act, in Part 2 dealing with confiscation proceedings, does not exist in Part 5, it is submitted.

So (in my experience) where there is a cash seizure and a criminal matter it is best to let the trial run its course first. If there is a conviction then the forfeiture application usually goes off unopposed. The case serves to highlight the disconnect in the two processes as between CPS and those instructed separately by the police.