Commentary on Sections Part 5: Civil Recovery of the Proceeds etc. of Unlawful Conduct Forfeiture Section 298: Forfeiture
413.Section 298 enables the magistrates’ court (or, in Scotland, the sheriff) to order the forfeiture of cash or any part of it if satisfied that it is recoverable property or is intended for use in unlawful conduct. The balance of probabilities is the evidential standard that applies to the proceedings, this being the normal civil standard of proof (section 241(3)).
414.Where the cash is recoverable property belonging to joint tenants, one of whom falls within the definition in section 270(4), the court must not forfeit the cash that it thinks attributable to the “innocent” partner’s share. An example of this might be a joint bank account into which drug trafficking proceeds (dirty money) has been paid by one signatory and clean money by the other. If the former withdraws all the cash and it is subsequently seized, the court must then distinguish between the clean and dirty money. The court may then return to the “innocent” partner his share of the money.
415.Subsection (4) provides that cash cannot be released under any circumstance once an application for the forfeiture of that cash is made, until such time as forfeiture proceedings have concluded.