Conditions for exercise
An appropriate officer may exercise the power to seize property if certain conditions are met which variously include the presence of an ongoing criminal investigation or proceedings, reasonable grounds to suspect the person has benefitted from the underlying offence, the presence of a Restraint Order and/or an ongoing or prospective applications for reconsideration of a confiscation order.
If there has been undue delay in continuing proceedings and/or applications on the prosecutor does not intend to proceed, the conditions for exercise of the search and seizure powers in PoCA 2002 will not be satisfied. There is, however, no such protection from undue delay in relation to investigations.
Search
Premises: an appropriate officer, if lawfully on premises, may search the premises for the purpose of locating property if they have reasonable grounds to suspect property might be found and intend to seize it.
Persons: an appropriate officer may require a person to permit search of any article on or about their person and/or to permit search of their person, and may detain a person for so long as is necessary to do so, if they have reasonable ground for believing the person is carrying property that may be seized; however, nothing in PoCA 2002 requires a person to submit to intimate or strip searches.
Vehicles: an appropriate officer may, for the purpose of seizing property, require a person to permit entry to and search of a vehicle if they have reasonable grounds for suspecting that the vehicle contains property that may be seized, and it appears that the vehicle is under the control of the person. This power is curtailed if the vehicle is situated at a dwelling rather than in a public place.
Seizure
An appropriate officer may seize realisable property if they have reasonable grounds to believe that, if not seized, it will be made unavailable for satisfying an existing or potential confiscation order and/or that the value of the property will be diminished or dissipated. The power extends to ‘cryptoasset-related items’; however, it is not possible to seize cash or exempt property (which includes items necessary to employment, business or domestic needs).
Approval
Exercise of the each of the search powers requires approval, either from a justice of the peace (in the Magistrates’ Court) or a senior officer (of inspector level or above), unless circumstances render prior approval impracticable.
Detention
Seized property may be detained for up to 48 hours. If an application for a Restraint Order is made during the 48-hour period, detention will continue until the application is disposed of, including any linked appeal. If a Restraint Order is already in place, detention will continue until any application to incorporate the detained property is determined, including any linked appeal. In other cases, the Magistrates’ Court can extend the period of detention. In relation to cryptoassets the period of detention can be extended repeatedly, by up to six months at a time.
Variation, Discharge and Appeal
Orders for further detention can be varied and discharged on application by affected persons. Appeals lay to Crown Court.
Release of property
If a cryptoasset-related item is released and is not claimed within a year the appropriate officer may retain it and deal with it as they see fit, including disposing of or destroying the item, after they have taken steps to notify the person from whom it was seized and any other persons reasonably believed to have an interest. The proceeds of any disposal will be paid into the Consolidated Fund, the governments general bank account.
How our expert litigators can help
Search and seizure under PoCA 2002 is technical and procedurally onerous and can often give rise to confusion with the provisions of the Police and Criminal Evidence Act 1984 (‘PACE’) and the PACE codes.
We can deploy a multi-disciplinary team of expert lawyers to challenge the conduct of appropriate officers and seek release of your property. We benefit from a wealth of in-house expertise in several disciplines including dispute resolution, criminal defence, proceeds of crime, civil recovery and regulatory. We also enjoy enduring relationships with leading consultants, including specialist PoCA barristers, forensic accountants and other industry experts.
Free Initial Discussion
If you have been the subject of a search and/or seizure under PoCA 2002 and wish to discuss your strategic options in relation to seized property, you should contact us as soon as possible. We can guide you through the process and limit overreaching officers.
Contact our lawyers by calling us on 0203 987 0222 or complete our enquiry form and one of our team will call you back. We can assist you wherever you are based.
