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Proceeds of crime – enforcement in EU member state

A recent appeal related to the proposed enforcement of a confiscation order made under POCA 2002 in another EU member state (Spain). D pleaded guilty to a number of drugs offences and a confiscation order was subsequently made.

At issue was the correct interpretation of the Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 – particularly, whether the certification process included in those regulations can be applied to confiscation orders made prior to 2 December 2014 when they came into force; and if so, whether certification may only be made in respect of assets shown to be the traceable proceeds of crime.

The prosecution sought a certificate for the purposes of enforcement of the confiscation order in Spain in respect of D’s assets in that jurisdiction. The application was successful and upheld by the appeal court.

The Court of Appeal analysed the legal framework and found that it ultimately came down to interpretation and ‘to the fairness and sense of the postulated outcome’. The 2014 Regulations are to be read purposively so as readily to facilitate enforcement and not to limit it. Further, the language of Regulation 11 is sufficient to make it applicable to confiscation orders previously made and there was no unfairness to D in such a conclusion.

As for whether the Spanish assets constituted proceeds of an offence, the available amount under the 2002 Act can include property which may have no taint of criminality because that is how the domestic scheme works. Benefit is identified by reference to general criminal conduct or to particular criminal conduct.

Furthermore, the court made clear that under the regulations the definition of ‘proceeds of an offence’ extends to ‘clean’ property which forms part of the available amount. R v Moss [2019] EWCA Crim 501. Source: www.bailii.org.

 

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