Territorial Extent and Application Confiscation Section 52 Power to retain seized property: England and Wales
282.Under POCA, a restraint order has the effect of freezing property that may be liable to confiscation. A confiscation order is a court order requiring a person to pay an amount equal to the financial benefit of what they have obtained from their crimes or criminal lifestyle. A restraint order provides that any persons who know of the order are prohibited from dealing with or disposing of specified property, but without this amendment, it does not provide for a general power to retain property.
283.Section 52 amends the restraint order provisions of POCA to provide that an appropriate officer (as defined in new section 41A(3)) can continue to retain property that has been or may be seized under a specified seizure power if that property is also subject to a restraint order. Property which was seized, for example, as evidence, and which is subject to a restraint order may therefore continue to be retained even when the evidential purpose for retention no longer exists.
284.The specified seizure powers are those contained in Parts 2 and 3 of the Police and Criminal Evidence Act 1984 (PACE), and certain POCA powers. By way of example, one of the most commonly used general powers of seizure for police constables in this context is section 19 of PACE. By virtue of an order under section 114(2) of that Act this power also applies to officers of HM Revenue and Customs. It allows for seizure of property which the officer has reasonable grounds for believing has been obtained in consequence of the commission of an offence or is evidence in relation to an offence under investigation.
285.Once property has been seized under section 19 of PACE it may be retained under section 22 of PACE for “so long as is necessary in all the circumstances”. Such property should be returned to its owner once it is no longer required for the purposes set out in section 22, which include for use as evidence. Property which is retained under section 22 for use as evidence at a criminal trial or for forensic examination or criminal investigation should also be returned where a photograph or copy of the seized property would be sufficient for those purposes. Without this amendment, there would be no specific power to continue to retain property that could be required to satisfy a confiscation order following conviction.
286.The new section 41A of POCA, inserted by section 52 also provides for the authorisation to retain property which was seized under two POCA seizure powers. These are section 47C (seizure to prevent property being made unavailable to satisfy a confiscation order, inserted by new section 55), and section 352 (search and seizure warrants) of POCA. The authorisation may also extend to property which is produced in compliance with a production order under section 345 of POCA.
287.The Secretary of State may by order amend the list of relevant seizure powers.
288.If a restraint order is discharged or varied so that property is no longer detained, the relevant law enforcement agency or prosecutor can appeal that decision. New section 44A provides for the continued detention of property while an appeal under section 43 or 44 of POCA is pending or remains possible.