The Magistrates' Courts (Detention and Forfeiture of Cash) Rules 2002

Statutory Instruments

2002 No. 2998 (L.17)

MAGISTRATES' COURTS, ENGLAND AND WALES

PROCEDURE

The Magistrates' Courts (Detention and Forfeiture of Cash) Rules 2002

Made

2nd December 2002

Laid before Parliament

9th December 2002

Coming into force

30th December 2002

The Lord Chancellor, in exercise of the powers conferred on him by section 144 and 145(1)(a) of the Magistrates' Courts Act 1980(1), after consultation with the Rule Committee appointed under the said section 144, hereby makes the following Rules:

Citation and commencement

1.  These Rules may be cited as the Magistrates' Courts (Detention and Forfeiture of Cash) Rules 2002 and shall come into force on 30th December 2002.

Interpretation

2.  In these Rules—

(a) “the Act” means the Proceeds of Crime Act 2002(2);

(b) “justices' clerk” means the justices' clerk for the justices who are to hear or have heard an application;

(c) words and expressions used have the same meaning as in Chapter 3 of Part 5 of the Act;

(d) a reference to a form is a reference to a form set out in the Schedule to these Rules or a form with the same effect.

Prior approval of searches for cash

3.—(1) An application to a justice of the peace under section 290(1) of the Act for prior approval of a search for cash under section 289 of the Act may be made without notice.

(2) A justice of the peace may grant such an application without a hearing and may conduct any hearing in private.

First application for the continued detention of seized cash

4.—(1) The first application under section 295(4) of the Act for an order under section 295(2) of the Act for the continued detention of cash seized under section 294 of the Act shall be made in form A and shall be sent to the justices' chief executive for the petty sessions area of the court before which the applicant wishes to make the application.

(2) But where the reasonable grounds for suspicion which led to the seizure of cash to which an application under section 295(4) of the Act relates are connected to the reasonable grounds for suspicion which led to the seizure of other cash to which a previous order made under section 295(2) of the Act relates, then the application may be sent to the justices' chief executive for the petty sessions area of the court which made the previous order.

(3) Except where paragraph (4) or paragraph (7) applies, a copy of the written application and notification of the hearing of the application shall be given by the applicant to the person from whom the cash was seized.

(4) Where seized cash is found in a means of unattended dispatch, such as an unattended letter, parcel or container, copies of the written application and notification of the hearing of the application shall be sent by the applicant to the sender and intended recipient of the means of unattended dispatch.

(5) But where paragraph (4) applies the applicant is not required to send copies of the written application and notification of the hearing to a sender or intended recipient who cannot be identified.

(6) Where paragraph (4) applies, the court shall not decline to hear an application solely on the ground that it has not been proved that the sender and intended recipient have been given a copy of the written application and notification of the hearing.

(7) Where unattended cash is seized (other than where the cash is found in a means of unattended dispatch) the applicant need not give a copy of the written application and notification of the hearing to any person.

(8) An order for the continued detention of seized cash shall be in Form B.

(9) The justices' chief executive shall give—

(a) notice of the order in Form C, and

(b) a copy of the order,

to the person from whom the cash was seized and to any other person known to be affected by the order.

Further applications for the continued detention of seized cash

5.—(1) An application under section 295(4) of the Act for a further order under section 295(2) of the Act for the continued detention of cash shall be made in Form A and shall be sent to the justices' chief executive to whom the first application under section 295(4) of the Act was sent.

(2) The applicant shall send a copy of the application to every person to whom notice of previous related orders made under section 295(2) of the Act has been given.

(3) The justices' clerk shall fix a date for the hearing of the application, which, unless he directs otherwise, shall not be earlier than seven days from the date on which it is fixed, and the justices' chief executive shall notify that date to the applicant and every person to whom notice of the previous orders has been given.

(4) A further order for the continued detention of seized cash shall be in Form B.

(5) The justices' chief executive shall give a copy of the order to every person to whom notice of the previous related orders has been given.

(6) The justices' chief executive shall also give—

(a) notice of the order in Form C, and

(b) a copy of the order,

to any person other than one referred to in paragraph (5) known to be affected by the order.

Applications for the release of detained cash

6.—(1) An application under section 297(3) or 301(1) of the Act for the release of detained cash shall be made in writing and sent to the justices' chief executive for the petty sessions area of the court before which the applicant wishes to make the application.

(2) But if the applicant has been given notice of an order under section 295(2) of the Act in respect of the detained cash, then the application shall be sent to the justices' chief executive who sent him that notice.

(3) The justices' chief executive shall send a copy of the application to—

(a) the Commissioners of Customs and Excise, if the cash which is the subject of the application was seized by a customs officer;

(b) the chief officer of the police force to which the constable belongs (or in the case of a constable who is a member of the National Crime Squad, the Director General of that Squad), if the cash which is the subject of the application was seized by a constable; and

(c) every person to whom notice of the order made under section 295(2) of the Act has been given.

(4) The justices' clerk shall fix a date for the hearing of the application, which, unless he directs otherwise, shall not be earlier than seven days from the date on which it is fixed, and the justices' chief executive shall notify that date to the applicant and to every person to whom a copy of the application is required to be sent under paragraph (3).

(5) At the hearing of an application under section 301(1) of the Act, the court may, if it thinks fit, order that the applicant shall be joined as a party to all the proceedings in relation to the detained cash.

(6) A direction under section 297(2) of the Act shall be in Form D, an order under section 301(3) of the Act shall be in Form E and an order under section 301(4) of the Act shall be in Form F.

(7) A direction under section 297(2) of the Act and an order under section 301(3) or (4) of the Act shall provide for the release of the cash within seven days of the date of the making of the order or direction, or such longer period as, with the agreement of the applicant, may be specified, except that cash shall not be released whilst section 298(4) of the Act applies.

Application for forfeiture of detained cash

7.—(1) An application under section 298(1) of the Act for the forfeiture of detained cash shall be in Form G and shall be sent to the justices' chief executive to whom applications for the continued detention of the cash under section 295(4) of the Act have been sent.

(2) Where no applications in respect of the cash have been made under section 295(4) of the Act, the application shall be sent to—

(a) the justices' chief executive for the petty sessions area of the court before which the applicant wishes to make the application; or

(b) where the reasonable grounds for suspicion which led to the seizure of cash to which the application for forfeiture relates are connected to the reasonable grounds for suspicion which led to the seizure of cash to which an order made under section 295(2) of the Act relates, to the justices' chief executive for the petty sessions area of the court which made the order under section 295(2).

(3) The applicant shall send a copy of the application to every person to whom notice of an order made under section 295(2) of the Act in respect of the detained cash has been given and to any other person identified by the court as being affected by the application.

(4) The justices' clerk shall set a date for a directions hearing, which, unless he directs otherwise, shall not be earlier than seven days from the date on which it is fixed, and the justices' chief executive shall notify that date to the applicant and to every person to whom a copy of the application is required to be sent under paragraph (3).

(5) At the directions hearing, the court may give directions relating to the management of the proceedings, including directions as to the date for the hearing of the application.

(6) If neither the person from whom the cash was seized, nor any other person who is affected by the detention of the cash, seeks to contest the application, the court may decide the application at the directions hearing.

(7) An order for the forfeiture of detained cash under section 298(2) of the Act shall be in Form H and a copy of the order shall be given by the justices' chief executive to every person to whom notice of an order made under section 295(2) of the Act in respect of the detained cash has been given and to any other person known to be affected by the order.

Application for compensation

8.—(1) An application under section 302(1) for compensation shall be made in writing and sent to the justices' chief executive for the petty sessions area of the court before which the applicant wishes to make the application.

(2) But if the applicant has been given notice of an order under section 295(2) of the Act in respect of the cash which is the subject of the application, then the application shall be sent to the justices' chief executive who sent him that notice.

(3) The justices' chief executive shall send a copy of the application to—

(a) the Commissioners of Customs and Excise, if the cash which is the subject of the application was seized by a customs officer;

(b) the chief officer of the police force to which the constable belongs (or in the case of a constable who is a member of the National Crime Squad, the Director General of that Squad), if the cash which is the subject of the application was seized by a constable.

The justices' clerk shall fix a date for the hearing of the application, which, unless he directs otherwise, shall not be earlier than seven days from the date on which it is fixed, and the justices' chief executive shall notify the applicant and the person referred to in paragraph (3) of that date.

Notice

9.  Any notification or document required to be given or sent to any person under these Rules may be given by post or by facsimile to his last known address, or to any other address given by that person for the purpose of service of documents under these Rules.

Transfer of proceedings

10.—(1) Any person who is a party to, or affected by, proceedings under Chapter 3 of Part 5 of the Act may, at any time, make an application to the court dealing with the matter for the proceedings to be transferred to a different petty sessions area.

(2) Any such application shall be made in writing and sent to the justices' chief executive for the petty sessions area in which the proceedings are being dealt with and shall specify the grounds on which it is made.

(3) The justices' chief executive shall send a copy of the application to the parties to the proceedings and any other person affected by the proceedings.

(4) The justices' clerk shall fix a date for the hearing of the application, which, unless he directs otherwise, shall not be earlier than seven days from the date on which it is fixed, and the justices' chief executive shall notify the date to the applicant and every person to whom a copy of the application is required to be sent under paragraph (3).

(5) The court may grant the application if it is satisfied that it would be more convenient or fairer for proceedings to be transferred to a different petty sessions area.

(6) If the application is granted—

(a) the justices' chief executive shall give a copy of the order to the parties to the proceedings and any other person affected by the proceedings;

(b) the justices' chief executive shall send all relevant papers to the justices' chief executive for the petty sessions area to which proceedings are transferred;

(c) any further proceedings under Chapter 3 of Part 5 of the Act in respect of the cash to which the proceedings relate shall be dealt with in the petty sessions area to which proceedings are transferred;

(d) any requirement under these Rules to make an application to a justices' chief executive shall be read as a requirement to make an application to the justices' chief executive for the petty sessions area to which proceedings are transferred.

Procedure at hearings

11.—(1) At the hearing of an application under Chapter 3 of Part 5 of the Act, any person to whom notice of the application has been given may attend and be heard on the question of whether the application should be granted, but the fact that any such person does not attend shall not prevent the court from hearing the application.

(2) Subject to the foregoing provisions of these Rules, proceedings on such an application shall be regulated in the same manner as proceedings on a complaint, and accordingly for the purposes of these Rules, the application shall be deemed to be a complaint, the applicant a complainant, the respondents to be defendants and any notice given by the justices' chief executive under rules 5(3), 6(4), 7(4), 8(4) or 10(4) to be a summons: but nothing in this rule shall be construed as enabling a warrant of arrest to be issued for failure to appear in answer to any such notice.

(3) At the hearing of an application under Chapter 3 of Part 5 of the Act, the court shall require the matters contained in the application to be sworn by the applicant under oath, may require the applicant to answer any questions under oath and may require any response from the respondent to the application to be made under oath.

(4) The court shall record or cause to be recorded the substance of any statements made under oath which are not already recorded in the written application.

Irvine of Lairg, C.

2nd December 2002

SCHEDULE

Rules 4(1) and 5(1) and Rule 2

FORM A First/Further** application for continued detention of seized cash

Rules 4(8) and 5(4)

FORM B First/Further** order for continued detention of seized cash

Rules 4(9) and 5(6)

FORM C Notice to persons affected by an order for continued detention of seized cash

Rule 6(6)

FORM D Direction for the release of detained cash under section 297(2) of the Proceeds of Crime Act 2002(MC (Detention and Forfeiture of Cash) Rules 2002 r 6(6))

Rule 6(6)

FORM E Order for the release of detained cash under section 301(3) of the Proceeds of Crime Act 2002(MC (Detention and Forfeiture of Cash) Rules 2002 r 6(6))

Rule 6(6)

FORM F Order for the release of detained cash under section 301(4) of the Proceeds of Crime Act 2002 (MC (Detention and Forfeiture of Cash) Rules 2002 r 6(6))

Rule 7(1)

FORM G Application for forfeiture of detained cash

Rule 7(7)

FORM H Order for forfeiture of detained cash (section 298(2) of the Proceeds of Crime Act 2002; MC (Detention and Forfeiture of Cash) Rules 2002 r 7(7))

Explanatory Note

(This note is not part of the Rules)

These Rules prescribe the procedure to be followed for applications to a magistrates' court for the detention, further detention, forfeiture or release of cash seized under Chapter 3 of Part 5 of the Proceeds of Crime Act 2002. Cash may be seized by a constable or customs officer on reasonable suspicion that the cash represents the benefit from unlawful conduct or is intended for use in unlawful conduct. The Rules also prescribe the procedure to be followed for applications to a magistrates' court for compensation where no forfeiture order is made. In addition, the Rules prescribe the forms to be used in connection with the applications and hearings.

(1)

1980 c. 43.

(2)

2002 c. 29.