Must the police identify criminal activity in summary cash forfeiture proceedings? Francesca Whitelaw and Elliot Gold report
Civil recovery of the proceeds of crime is now a common feature of the criminal courts. But not necessarily criminal law. Procedures for the recovery of such proceeds may take the form of civil proceedings even though such applications are heard in the criminal courts. For some, this has led to confusion. Practitioners have disagreed over both the burdens and the standards of proof that relate to different parts of the Proceeds of Crime Act 2002 (POCA 2002).
It is now accepted that the authority pursuing the application must demonstrate that the proceeds of crime are as such on the balance of probabilities. In other words, the test is “more likely than not”. However, this has led to another question which has been more difficult to answer. That is, must the prosecuting authorities identify the type of unlawful activity from which the proceeds are derived? Some authorities have said that the applicant/authority does have to be able to identify it. Others have said
