Commentary on Sections Part 4: Enforcement Section 24: Seizure of cash
77.Chapter 3 of Part 5 of the Proceeds of Crime Act 2002 allows a police constable or customs officer to search a person or premises for cash where there are reasonable grounds for suspecting that such cash is derived from or intended for use in unlawful conduct. The provisions also empower a police constable or customs officer to seize and detain any such cash. Seized cash can be further detained and forfeited on an application made to a court of summary jurisdiction. The power to apply for further detention and forfeiture of cash does not depend upon a criminal prosecution and the proceedings focus on the source of the cash which has been seized rather than the guilt of any individual. These sections will extend the powers so that they may be exercised by immigration officers.
78.Subsection (2)(a) provides that the power to carry out a search for cash will be available to Immigration Officers where there are reasonable grounds for suspecting that the cash in question is derived from or intended for use in connection with an offence under the Immigration Acts. Subsection (2)(b) provides that the power to seize and detain cash may be exercised where there are reasonable grounds for suspecting that the cash is derived from or intended for use in connection with an offence under the Immigration Acts or an offence listed in section 14 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The safeguards that apply to constables and officers of HMRC will similarly apply to immigration officers. The code of practice will be amended to apply to immigration officers to provide guidelines on the operation of their search powers.
79.An immigration officer can only exercise the power to search for cash with the prior approval of a judicial officer, unless it is not practicable to obtain that approval at the time. Subsection (2)(c) provides that where it is not practicable to obtain the approval of a judicial officer an Immigration officer must seek the authority of a civil servant of at least the rank of assistant director in order to exercise the power of search.
80.Subsection 2(f)(i) provides that where an immigration officer continues to have reasonable suspicion that the seized cash is the proceeds of or intended for the use in an offence related to immigration, he will be able to make an application for an order to extend the detention period of the cash direct to a Magistrates’ court in England and Wales or Northern Ireland. Subsection (2)(f)(ii) provides that in Scotland such applications must either be made by the Scottish Ministers in connection with their functions under section 298 of Act or by a procurator fiscal.
81.Subsection (2)(g)(i) provides that whilst the cash is detained, an immigration officer will be able to make an application for a forfeiture order direct to the Magistrates Court in England, Wales and Northern Ireland. Subsection (2)(g)(ii) provides that in Scotland such applications must be made by the Scottish Ministers.
82.Subsection (2)(h) provides that compensation claims in relation to cash seized by immigration officers, for which no forfeiture order is made, will be paid by the Secretary of State.