Proceeds of Crime Act 2002 (POCA)

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1 Proceeds of Crime Act 2002 (POCA) Version v3.0 Guidance for Border Force designated customs officials about seizing and referring cash under POCA. Page 1 of 23 Published for Home Office staff on 19 January 2017

2 Proceeds of Crime Act 2002 (POCA) About this guidance... 3 Contacts... 3 Cash seizure: legislative powers... 4 Applied CEMA powers... 4 Searches under Section 289 POCA carried out inland... 4 Cash seizure: definitions... 6 Cash... 6 Unlawful conduct... 6 Recoverable property... 6 Time of seizure... 6 Cash seizure: counterfeit currency... 8 Cash seizure: converting foreign currencies to sterling... 9 Cash seizure: detection procedures Cash found: questions and information to obtain Questions Information Other actions Money laundering regulations and high value dealers Referrals of cash prior to seizure Cash referrals Cash seizure: adoption of case Unadopted cases Adopted cases Arrest for money laundering Seizing cash: bagging up process Forms for seized cash BOR 1403: application for continued detention of cash BOR 1387: receipt of seized cash BOR 1413: cash detection discussion permission form Further actions for seized cash Seizing cash: unaccompanied baggage Cash detections in post, fast parcels and freight Page 2 of 23 Published for Home Office staff on 19 January 2017

3 About this guidance This guidance tells you about how Border Force designated customs officials seize cash under the Proceeds of Crime Act 2002 (POCA). Contacts If you have any questions about the guidance and your line manager or senior caseworker cannot help you, or you think that the guidance has factual errors, then If you notice any formatting errors in this guidance (broken links, spelling mistakes and so on) or have any comments about the layout or navigability of the guidance then you can Page 3 of 23 Published for Home Office staff on 19 January 2017

4 Cash seizure: legislative powers This page tells Border Force designated customs officials about powers under the Proceeds of Crime Act 2002 (POCA) and the Customs and Excise Management Act 1979 (CEMA) to search for and seize cash amounts of 1,000 or more (or the equivalent in any other currency). Section 294 of the Proceeds of Crime Act 2002 (POCA) provides Border Force designated customs officials with a power to seize cash of the minimum value ( 1,000 or more) where they reasonably suspect it is recoverable property or that any person intends to use it for unlawful conduct. The POCA 2002 (Recovery of Cash in Summary Proceedings: Minimum Amount) Order 2006 (No. 1699) provides that the minimum value for the purposes of sections 289 to 316 of POCA is 1,000. Section 295 (1) of POCA provides that cash seized under section 294 of POCA can only be initially detained for a period of up to 48 hours (not counting weekends and bank holidays). Courts can extend this period of detention. Applied CEMA powers Section 99 of the Policing and Crime Act 2009 inserted section 164A in to CEMA, which amends the following sections of CEMA by changing the emphasis in those sections from goods or items to read cash. This means you can: search aircraft, vessels and vehicles for cash under section 28 of CEMA require information relating to the goods under section 77 of CEMA examine goods for cash under section 159 of CEMA carry out a rub-down search of person for cash under section 164 of CEMA (you are permitted to carry out strip and intimate searches for cash under section 164 of CEMA in exceptional circumstances ) continue to exercise your CEMA questioning, search and examination powers as set out in customs guidance Searches under Section 289 POCA carried out inland If you are a Border Force designated customs official deployed inland (for example, to support a National Crime Agency operation) and have reasonable grounds for suspecting that a person is carrying 1,000 cash or more, and that the cash is recoverable property or is intended for use in unlawful conduct in relation to an assigned matter within the meaning of CEMA, you can carry out a rub-down search of the person under section 289 of POCA. You may also search any premises you are lawfully on for cash, if you have reasonable grounds for suspecting that there is 1,000 cash or more on the premises and that the cash is recoverable property or is intended for use in unlawful conduct in relation to an assigned matter within the meaning of CEMA. Before carrying out a search under section 289 of POCA you must have the authority of a Higher Officer or above. If you carry out a search under section 289 of POCA you may be required under section 290 (6) of POCA to notify an appointed person Page 4 of 23 Published for Home Office staff on 19 January 2017

5 about the search. if you have carried out a search under section 289 of POCA will advise whether you need to notify an appointed person about the search. Strip and intimate searches for cash are not permitted in any circumstances under section 289 of POCA. Page 5 of 23 Published for Home Office staff on 19 January 2017

6 Cash seizure: definitions This page tells you about how cash and unlawful conduct are defined in the Proceeds of Crime Act 2002 (POCA) and how time of seizure is defined for POCA purposes. Cash Section 289 of the Proceeds of Crime Act 2002 (POCA) defines cash found in any place in the UK as: bank notes in any currency coins in any currency postal orders cheques of any kind including travellers cheques bankers drafts bearer bonds bearer shares Only the face value of a coin is considered for POCA purposes. The carat of gold coins (for example krugerrands) is not considered. Unlawful conduct Section 304 of POCA defines unlawful conduct as any activity which occurs: in any part of the UK and is unlawful under the criminal law of that part of the UK in a country outside the UK, the activity is unlawful under the criminal law of that country, and if that activity occurred in part of the UK it would be unlawful under the criminal law of that part of the UK Recoverable property Section 223 of POCA defines property as all property wherever situated and includes: money all forms of real or personal property things in action and other intangible or incorporeal property Section 304 of POCA outlines that property obtained through unlawful conduct is recoverable property. Time of seizure In POCA cases the time of seizure is the time you conclude that you reasonably suspect the cash is recoverable property or that any person intends to use it for unlawful conduct.. You must record the time of seizure in your official notebook. Page 6 of 23 Published for Home Office staff on 19 January 2017

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8 Cash seizure: counterfeit currency This page tells you about how you should process counterfeit currency. Counterfeit currency is not within the scope of the Proceeds of Crime Act 2002 (POCA). The import and export of counterfeit currency without Her Majesty s Treasury approval is prohibited under sections 20 and 21 of the Forgery and Counterfeiting Act Prohibited counterfeit currency is liable to forfeiture under sections 49 (1) (b) for imports and 68 (1) for exports of the Customs and Excise Management Act 1979 (CEMA). You must should seize counterfeit cash under section 139 (1) of CEMA. Page 8 of 23 Published for Home Office staff on 19 January 2017

9 Cash seizure: converting foreign currencies to sterling This page tells you about converting foreign currency to determine whether it equates to 1,000 or more. You should use to determine whether an amount of foreign currency equates to 1,000 sterling or more. Page 9 of 23 Published for Home Office staff on 19 January 2017

10 Cash seizure: detection procedures This page tells you how to detect and handle cash. you should examine them further under the Customs and Excise Management Act 1979 (CEMA) and carry out the following actions: prepare to examine their baggage: o where possible move to a discrete location out of public view o request the assistance of another Border Force designated customs official and on their arrival agree roles - the second officer s role is to witness the actions of the first officer o obtain checked-in luggage carry out a baggage search in front of the person If the only grounds for the baggage search is that you suspect cash is in the baggage, you must conduct the search under section 159 of CEMA. If you are searching the baggage where its owner is not present, and you discover cash which you think is more than 1,000 and you reasonably suspect that the cash is recoverable property or any person intends to use it for unlawful conduct, you may seize it under section 294 of the Proceeds of Crime Act 2002 (POCA), unless you are making a referral prior to seizure. If you find no cash during the baggage search but still have concerns, you must consider if you have sufficient grounds to conduct a search of person under section 164 of CEMA. If after carrying out a search of baggage or person, you find cash which you think is more than 1,000 and you reasonably suspect it to be recoverable property or that any person intends to use it for unlawful conduct, you must seize the cash under section 294 of The Proceeds of Crime Act 2002 (POCA) unless you are making a referral prior to seizure, and then: inform the passenger that you have seized the cash under section 294 of POCA issue form BOR 1387 to the passenger as soon as is practicable follow the bagging up process to secure the cash refer the case to an appropriate party for them to consider adoption record these actions and the time of seizure in your official notebook You must not under any circumstances seize cash under POCA if you suspect it is equal to or under 1,000. There is no power under POCA to do so. Page 10 of 23 Published for Home Office staff on 19 January 2017

11 Cash found: questions and information to obtain This page tells you about the questions you may ask and information you should obtain once you have detected cash of 1,000 or more. You must record the answers to the questions and information you obtain in your official notebook. If you are a Border Force Assistant Officer you should inform a customs designated Border Force officer of the passenger s answers and information obtained. The Border Force officer will decide whether the cash detection should be referred. Questions You should ask the following questions to help establish whether the cash is recoverable property or is intended to be used for unlawful conduct: Information Other actions You must consider whether: a search of the person under section 164 of the of the Customs and Excise Management Act 1979 (CEMA (as permitted by 164A of CEMA)) is appropriate an examination or search of checked-in baggage is appropriate (if you haven t already completed such an examination or search) a photograph of the cash is appropriate (it might for example assist in demonstrating that the cash has been derived from or is intended for unlawful contact) You must only use official equipment to take a photograph and not personal mobile phones or cameras. If the passenger is departing the UK, you must keep their airline or its handling agents informed that you are examining the passenger to ensure the flight departs on time with or without the passenger. Do not inform the airline or its handling agents about the reasons for the examination of the passenger. You must remember that the passenger is free to leave unless they are being arrested for a money laundering offence. If you have not already seized the cash under section 294 of the Proceeds of Crime Act 2002 (POCA) and, after questioning the passenger or gathering the above information, you reasonably suspect that the cash is recoverable property or is Page 11 of 23 Published for Home Office staff on 19 January 2017

12 intended to be used for unlawful conduct, you must seize the cash under section 294 of POCA unless you are making a referral prior to seizure and then: inform the passenger you have seized the cash under section 294 of POCA issue form Cash: seizure receipt BOR 1387 to the passenger as soon as is practicable follow the seizing cash: bagging up process to secure the cash refer the case to an appropriate party for them to consider adoption record these actions and the time of seizure in your official notebook Page 12 of 23 Published for Home Office staff on 19 January 2017

13 Money laundering regulations and high value dealers This page tells you how to deal with a person who claims to be a high value dealer (HVD). The Money Laundering Regulations 2007 (2007 Regulations) as amended require a HVD to register with HM Revenue and Customs (HMRC). Regulation 3 (12) of 2007 Regulations define a high value dealer as: a firm or sole trader who by way of business trades in goods (including an auctioneer dealing in goods), when he receives, in respect of any transaction, a payment or payments in cash of at least 15,000 Euros in total, whether the transaction is executed in a single operation or in several operations which appear to be linked. You might detect cash of 1,000 or more which you suspect is recoverable property or a person intends to use it for unlawful conduct. The passenger may claim to be a HVD and that they are lawfully carrying the cash. You must remember that even if the passenger is a registered HVD, you must still seize the cash under POCA if you reasonably suspect it is recoverable property or any person intends to use it for unlawful conduct. Page 13 of 23 Published for Home Office staff on 19 January 2017

14 Referrals of cash prior to seizure This page tells you about referring cash to appropriate parties for adoption prior to seizing the cash under the Proceeds of Crime Act 2002 (POCA). You may refer cash to an appropriate party for them to consider adoption whilst you are part way through or immediately after using the applied CEMA powers in relation to the cash. Once you have seized the cash you should: inform the passenger that you have seized the cash under section 294 of POCA issue form Cash: seizure receipt BOR 1387 to the passenger as soon as is practicable follow the bagging up process to secure the cash record these actions and the time of seizure in your official notebook Page 14 of 23 Published for Home Office staff on 19 January 2017

15 Cash referrals Page 15 of 23 Published for Home Office staff on 19 January 2017

16 Cash seizure: adoption of case This page tells you what to do when a party has decided to adopt a case or parties have declined to adopt a case. Unadopted cases If the cash is seized under POCA, you should record in your official notebook: that the cash is no longer seized under POCA the time and date the last party confirmed that they did not wish to adopt the case If the passenger has already departed you should contact the passenger to arrange for them to collect the cash and if the cash had been seized under POCA also inform the passenger that it is no longer seized under POCA. You must keep a record of all correspondence and contact with the passenger in your notebook. If you have a verbal discussion with the passenger, you must keep a record of the conversation in your notebook and include the date and time of the conversation. If the passenger attends to collect the cash you must require them to sign a receipt for the cash in front of you and another Border Force officer. You and the witnessing officer must sign the receipt. You should retain a copy of signed the receipt and issue the original to the passenger. You and the witnessing officer must record your actions in your notebook. The cash should be stored in a secure location pending collection. You must record your actions in your official notebook. Adopted cases If adopts the cash you must: record in your official notebook the time of adoption find out from the party the time, date and location of the magistrates hearing and record it in your official notebook ask the passenger if they are willing to stay and answer further questions relating to the cash and record their answer in your official notebook if the passenger has any documents relating to the cash, ask their permission to photocopy the documents (if they agree to the photocopying and ask them to sign a note in your official notebook which outlines that permission). invite the person to stay and answer further questions, if the person chooses not to travel: Page 16 of 23 Published for Home Office staff on 19 January 2017

17 o you must inform the passenger that they are not under arrest and are free to leave at any time o you must inform the passenger that any costs incurred as a result of electing not to travel (for example tickets) must be met by them o you must inform the passenger that any costs relating to legal advice or the use of an interpreter must be met by them o if the passenger was or still is intending to depart the UK, you must inform their airline or its handling agents of the situation without disclosing the reasons for their delay o you should complete and serve any outstanding relevant forms before questioning them further o you must complete any outstanding actions from the cash seizure: bagging up process before questioning them further o you must record the questions and answers contemporaneously in your official notebook if the person says that they will not stay and answer further questions: o you must complete and serve any outstanding relevant forms for seized cash o you must complete any outstanding actions from the cash seizure: bagging up process o establish whether they intend to attend the hearing at the magistrates court or wish to nominate a representative Arrest for money laundering If a party advises you to arrest the individual for money laundering you must ensure that: the party informs you of the offence the person has or is suspected of committing (in most cases this is likely to be an offence under section 45 of The Money Laundering Regulations 2007 as amended) an appropriately trained Border Force officer understands why the arrest is necessary the arrest is made under section 24 (1) of The Police and Crime Evidence Act 1984 (PACE) the arresting officer takes the individual to the nearest Border Force custody suite or police station Page 17 of 23 Published for Home Office staff on 19 January 2017

18 Seizing cash: bagging up process This page tells you how to bag up cash detained under the Proceeds of Crime Act 2002 (POCA). You must: ensure another Border Force designated customs official witnesses you completing the bagging up process wear gloves and place the cash in an unmarked paper envelope o if there are different forms of cash (for example, notes, coins and cheques) you should seal each form in a separate envelope to the other forms, if necessary use different envelopes for each location that the cash was concealed in seal the envelope write the passenger s full name and date of birth on the front of the envelope ask the person to sign and date all seals of each envelope - if the passenger refuses to sign and date the seals then the officer and witnessing officer should both sign and date the seals tape over all seals with transparent adhesive tape place the sealed envelope or envelopes inside a tamper evidence bag Page 18 of 23 Published for Home Office staff on 19 January 2017

19 Forms for seized cash This page tells you about the forms you need to complete when seizing cash under the Proceeds of Crime Act 2002 (POCA). You should make every effort to complete and serve the following forms before the passenger leaves the restricted zone to take a flight. The forms can be found in the forms section of the Customs guidance. BOR 1403: application for continued detention of cash If you have seized the cash in Scotland you do not need to complete this form. The adopting party will complete the necessary forms to apply to a Sheriff for the continued detention of cash. Form BOR 1403 is Border Force s application to a magistrates court in England, Wales and Northern Ireland for the continued detention of the cash. This form must include the specific grounds for suspecting that the cash should be further detained for investigation. You must: sign the form provide a photocopy of the completed and signed form to the passenger where they are present with the accompanying advisory notes page of the form - you should: o retain a photocopy of the completed and signed form o send the original signed form to the magistrates record in your official notebook that you: o submitted the form o issued a copy to the passenger the form o informed the passenger of the time, date and location of the court hearing If you are part of you may complete a different application form to apply to a court for continuing detention of cash seized under POCA instead of completing BOR1403, providing has approved use of that form. Your will provide you with such a form. BOR 1387: receipt of seized cash Form BOR1387 is a receipt for the cash seized. You must issue the form to the passenger as soon as is practicable after seizing the cash and retain a copy. You and the passenger should sign the form. You must record in your official notebook that you issued the form to the passenger. If the passenger declines to sign the form you must record that the passenger declined to do so in your official notebook. Page 19 of 23 Published for Home Office staff on 19 January 2017

20 BOR 1413: cash detection discussion permission form Form BOR 1413 explains to the passenger their cash has been seized and that you want to discuss the cash with them. The passenger should sign to confirm whether or not that they are willing to participate in a discussion. You must provide a copy of the form to the passenger. You must record in your official notebook that you issued the form to the passenger. If the passenger declines to sign the form you must record that the passenger declined to do so in your official notebook. Page 20 of 23 Published for Home Office staff on 19 January 2017

21 Further actions for seized cash This page tells you about the actions you need to complete when you have seized cash under the Proceeds of Crime Act 2002 and the passenger has departed. The actions below are essential to ensure that an accurate audit trail exists in relation to the cash. Page 21 of 23 Published for Home Office staff on 19 January 2017

22 Seizing cash: unaccompanied baggage This page tells you about detecting and seizing cash in unaccompanied baggage under the Proceeds of Crime Act 2002 (POCA). Section 159 of the Customs and Excise Management Act 1979 allows designated customs officials to examine baggage in the absence of its owner. If you detect such cash you must: make a record of the detection in your notebook inform your Higher Officer of the detection Page 22 of 23 Published for Home Office staff on 19 January 2017

23 Cash detections in post, fast parcels and freight This page tells you how to process cash detected in post, fast parcels and freight which you reasonably suspect is recoverable property or intends to be used for unlawful conduct. Page 23 of 23 Published for Home Office staff on 19 January 2017

1. (1) This Act may be cited as the Anti-Money Laundering and Anti-Terrorism Financing (Amendment) Act 2013.

1. (1) This Act may be cited as the Anti-Money Laundering and Anti-Terrorism Financing (Amendment) Act 2013. Anti-Money Laundering and Anti-Terrorism Financing (Amendment) A BILL 1 i n t i t u l e d An Act to amend the Anti-Money Laundering and Anti-Terrorism Financing Act 2001 and the Anti-Money Laundering (Amendment)