Circular 012/2018: Criminal Finances Act: confiscation, enforcement, defendent's money held by a third party
Published 1 February 2018
© Crown copyright 2018
This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3 or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: psi@nationalarchives.gov.uk.
Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned.
This publication is available at https://www.gov.uk/government/publications/circular-0122018-criminal-finances-act-confiscation-enforcement-defendents-money-held-by-a-third-party/circular-0122018-criminal-finances-act-confiscation-enforcement-defendents-money-held-by-a-third-party
This guidance is issued to raise awareness of relevant amendments introduced by the Criminal Finances Act 2017 (CFA). It is not a statement of law and is not intended to provide a comprehensive description or interpretation of the power.
Section 67 of POCA has been heavily amended by both the Serious Crime Act 2015 (see section 14) and the Criminal Finances Act 2017 (see section 26). It now provides for two sets of powers relating to the enforcement of a confiscation order in relation to defendant’s money which is held by another person; notably, by a bank in an account or by a law enforcement agency following its seizure.
Firstly, section 67 provides the magistrates’ court with a power to order money in a bank or building society account to be paid in satisfaction of a confiscation order. This applies to accounts held in the defendant’s name or an account where it has been previously determined under section 10A of POCA (determination of extent of defendant’s interest in property) that the defendant has an interest in that account, albeit the account is held in the name of a third party.
Secondly, section 67 now also enables the confiscation of money in the form of cash which has been seized from defendants under any power by any law enforcement authority which can lawfully exercise the particular power (not just the police and HMRC) and is being detained in connection with a criminal investigation or prosecution, or an investigation under section 341 of POCA. This could, for example, cover cash which has been seized as evidence for a criminal trial which has been paid into an account or is being held physically.
These powers are an alternative to obtaining the defendant’s consent to paying the money over, or appointing an enforcement receiver.
It is of note that there is no need for the money to be subject to a restraint order, or for any period allowed under section 11 of POCA for payment of the amount ordered to be paid under the confiscation order to have ended. Although there is no requirement for there to be a restraint order in place, notice of the application must be served on the bank or building society that holds the funds to which the application relates in those cases where the money is in an account.
There is a parallel brand new power inserted into the Scottish provisions (section 131ZA of POCA) by section 28 of the CFA. Similar principles and procedures as outlined above also apply in Scotland. These are set out in s106-109 of POCA.