Another 48 hours?

The police have the power, pursuant to s 294 Proceeds of Crime Act 2002, to seize cash and then to retain it for 48 hours. They can then apply to the magistrates' court for the period of detention to be extended for three months, up to a total of two years. During this time, they can apply to the court for the cash to be forfeited permanently. Despite the fact that this takes place in the magistrates' court, these are civil proceedings, not criminal.

The seizure itself is subject to statutory safeguards. The first is that the police must have a reasonable belief that the cash is derived from unlawful conduct or that it will be used for an unlawful purpose. The second is that the police must seek the authorisation of a court, pursuant to s 295, in order to continue to detain the cash that they have seized. The police must seek this authorisation within 48 hours of its seizure, excluding weekends and bank holidays. Failing which, the police may have no lawful authority to keep it.

However, it is unclear as to what is the position if a court refuses to grant the first application for further detention. The respondent may want their money back. The police may want to try again.

Possible scenarios

Consider the following. The police seize £10,000 on a Monday. They apply to a magistrates' court for permission to detain it for more than 48 hours pursuant to s 295. The court hears the application on Tuesday. It rejects it. The police do not want to hand back what they consider to be the ill-gotten gains. They hold on to the cash until Friday, potentially without any lawful authority. Then, on Friday afternoon, they reseize it and bring a fresh application to extend the initial period of detention. The question may be whether this is permitted in the following scenarios:

• the magistrates applied the wrong test when refusing the application by considering whether the cash was recoverable property rather than if the police had a reasonable suspicion that it was so;
• the magistrates applied the correct test but the police have further evidence to present that either is new or is material that the police failed to put forward; and
• the magistrates applied the correct test and the police have no new evidence to present.

Right of appeal

Neither party can appeal to the Crown Court against a decision of the magistrates court, made pursuant to s 295, to allow or not to allow further detention. The only power of appeal to the Crown Court is against a final decision to forfeit the cash permanently.

So, in our example, can the respondent demand back cash? It is probable that the police can keep the money depending, of course, on the circumstances.

Reasons for extending the initial period of seizure

A magistrates' court can refuse to extend the period of detention for two main reasons. The first is that the police have no reasonable suspicion that the cash is recoverable property (or will be used in unlawful conduct). The second is that the further detention of the cash is not justified. It may be possible for a court to find that the police have a reasonable suspicion that the cash is recoverable property but that its further detention is not justified.

This raises two points. The first is that a failure by the magistrates to find that the interim test is justified does not, of itself,

prohibit a later court from making an order for permanent forfeiture pursuant to s 298. The second is that where a court finds that the police do have a reasonable suspicion that the cash is recoverable property but that it is not justified to detain it further, it would be surprising if this prevented an application for permanent forfeiture under s 298.

It is helpful to consider the appeal, by way of case stated, of R (on the application of the Chief Constable of Lancashire) v Burnley Magistrates Court [2003] EWHC 3308. Here, the magistrates refused to extend the period of initial detention. The police responded by lodging the Form G '“ the application for full forfeiture pursuant to s 298. Once a Form G is lodged, the court is prohibited, by s 298(4), from releasing the cash until after the determination of the final forfeiture hearing. So the police effectively negated the decision of the court not to extend the period of initial seizure. The Administrative Court held that this was not an abuse of the process of the court as the legislation permitted the police to lodge the Form G at any time during the initial 48-hour period of detention.

The Administrative Court noted that the magistrates had not ordered the release of the cash pursuant to s 297. However, it is not certain whether this would have made any difference. If the court were to have ordered the police to release the cash, there was, and is, nothing within the Act that would have prevented the police from reseizing it pursuant to s 294, holding this for the 48-hour period pursuant to s 295 and then, within that 48-hour period, lodging a Form G or making a further application to extend the period of seizure.

So to go back to our example. The court has refused the police permission to hold on to the £10,000. Whether it has or has not ordered the cash to be released, the police have reseized it. Is it an abuse of process for the police either to lodge the Form G as above or to make another 'first application' to extend the period of detention?

Reseizure and lodging the Form G

It is arguable that there is nothing in the statute to prevent a police reseizure of the cash. The court's decision on an interim application to extend the period of detention is not a final decision on the status of the cash. It is merely a decision on the reasonable suspicion held by the police at that time or a determination on the justification at that time.The refusal of a magistrates' court to extend the period of detention does not create an automatic presumption or a legitimate expectation that the cash must be returned. The police would be entitled, during the remainder of the initial 48-hour period, to lodge the Form G and 'stop the clock' pending a final hearing as to the cash status.

In our example, the police failed to lodge the Form G before the end of the 48-hour period. However, the prejudice to the respondent from the police reseizing the cash may be no more than minimal. It would be the delay in the proceedings caused by the police failure to lodge the Form G in time. If this were to cause no delay in the proceedings then it may be that there is no prejudice at all. For example, if the Crown Prosecution Service were to consider bringing criminal proceedings then the final hearing of the

s 298 application would be delayed pending a decision or final outcome on the criminal matters. The delay in lodging the Form G would have no impact on the delay in holding the final hearing. Similarly, if the court availability were such that it would have been unlikely that the earlier lodging of the Form G would have resulted in an earlier date for the final hearing.

A second 'first application'

There is, also, nothing in the legislation that prevents the police from bringing a second 'first application'. However, it may be more of a challenge for the police to persuade the magistrates to extend the period of detention.

If the police consider that, as in our first scenario above, the magistrates refused to extend the period of detention because they applied the wrong test, then the police should ensure that they have a full copy of the decision arising from that first refusal. The court is not obliged to make an order for further detention even all the conditions are satisfied. The word in the Act is that the court 'may' order the extension. If, during the course of the application, the police are unable to persuade the second court that the first court acted in error, then the second court may decline to grant their application. Where the police have been unsuccessful on a first hearing, they would be well advised to ensure that they have a full note of the decision and, also, a copy of the clerk's note.

It is also possible that the police could receive further information as to the unlawful derivation of the cash after releasing it. If so, then the basis of their suspicion that the cash is recoverable property would have changed or been strengthened. There would then be some justification for the police to reseize the cash and to inform the court that their suspicion is based on further material that was previously unavailable. The police would be seeking to ask a court to extend the period of forfeiture on a different basis rather than twice on identical, unchanged facts.

However, where the police have chosen not to present all of their material to the court and continue to make a fourth, fifth or even sixth 'first application', drip-feeding new material after each successive failure, this could amount to an abuse as considered below.

If the police had no new material and there had been no previous error, there would still be no bar in the legislation to prevent them from bringing a second 'first application'. However, the court is not obliged to order the further detention and, in such circumstances, may refuse to do so. The police would, nevertheless, still have the power to lodge the Form G and 'stop the clock'.

Even if all the above were non-starters, there is still one other option by which the police could avoid handing back the cash. The police could, if the situation justified it, seize the cash under a different statutory power. They could then consider reseizing it under the Proceeds of Crime Act at a later date, pursuant to Chief Constable of Merseyside v Hickman, 7April 2006 Times Law Reports; [2006] 1 Pol LR 14; [2006] EWHC 451 (Admin).

Abuse of process

It is not unfair to say that the abuse of process backstop may be unneeded in these civil, summary proceedings. That is because even if the court is satisfied as to the statutory requirements for further detention, it has the power not to grant a period of extension. This can operate as an inbuilt safety valve that allows the court to reject applications where the court considers the behaviour of the police to be improper.

Further, it is worth recalling that these are civil proceedings. In civil proceedings, the doctrines of double jeopardy or autrefois acquit do not apply. Also, it is unlikely that the justices will be functus officio. They certainly will be functus in relation to the first seizure. But it is unlikely they will be functus in relation to the second seizure, made on a different date and time.

The other remaining argument is that of bad faith. In our examples above, the police could argue fairly that their behaviour was not in bad faith or deliberately calculated to circumvent the protections in the Act. It is not as if, in our scenarios, the police were seeking to use reseizure as a device to hold the cash for more than two years.

It is unlikely that a respondent would be successful in suggesting that the bringing of a second application amounted, in those circumstances, to harassment or vexatious behaviour.

However, this might be different where the police had chosen not to present all of their material to the court but continued to make subsequent 'first applications', drip-feeding new material after each successive failure.

Conclusion

In the absence of any statutory prohibition, it would appear that the police may be able to reseize the cash.

Whether the police would be successful in applying to extend the period of detention rather than lodging a Form G will depend upon the circumstances. In most instances, it is unlikely that the abuse of process jurisdiction will be helpful.