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Presentation time 120 minutes
The Act has increased the reach of forfeiture where someone has benefited from significant criminal activity. A conviction is no longer required as a starting point. Cases are often complex with multiple respondents and multiple assets vulnerable to civil or criminal forfeiture. Do you feel out of your depth in this specialised area and want to do the best for your clients?
We are now approaching five years since this legislation was enacted, markedly increasing the powers of prosecuting agencies to restrain and forfeit tainted property or assets where someone has benefited from significant criminal activity. This seminar will examine key case law and emerging trends and reflect on what these mean in practical terms for practitioners.
It will also consider whether the Act has delivered on its purposes which include deterring criminal activity and eliminating the chance for persons to profit from it. Lastly, it recaps the law and relevant procedures given that, even five years in, the area remains somewhat novel for many practitioners.
The key points to be covered are:
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On 1 December 2014, the Criminal Proceeds (Recovery) Act 2009 celebrates its fifth birthday. It is timely to examine how the Act has been applied and has responded to the wider setting in which it was conceived and enacted.
The Act replaced the Proceeds of Crime Act 1991. Our impression is that it is well drafted: for example, it has provisions specifically designed to provide clarity or to help avoid doubt or ambiguity. More importantly, most sections clearly mean what they say. Much case law then – particularly later case law – is highly fact specific (and often brief) and is not submerged in lengthy digression into interpretation of what the Act means or was intended to mean. An education on the Act’s principles and general operation is found in the earlier case law as it took the first steps into a new regime and its several important distinctions from the 1991 Act.
The purposes in s 3 percolate the Act. For example, they assist in resolving interpretative difficulties where these arise – such as in relation to key terms like a debt “incurred by the respondent in good faith” for the purposes of s 28 or whether proceedings are civil or criminal. Or, where a meaning or procedure is clear but a discretion enables different outcomes (such as restraint), s 3 provides a constant, principled yardstick against which the courts might exercise that discretion.
While prescriptive in parts, the Act is not an absolute or exhaustive code. It could instead be characterised as an open-textured basis for forfeiture which requires the practitioner to further draw upon statutes including:
In addition, many common law principles relating to areas such as relationship property and an interest in property may be engaged.
It is precisely this open-textured setting and the diversity it invites which make proceedings under the Act challenging, rigorous, and, as a welcome aside, intellectually and often factually interesting. For the practitioner, proceeds of crime law provides a fruitful diet of legal experience, extending as it does across the civil and criminal jurisdictions.These are the slides included in the presentation.
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Authors: Jacinda Foster, Dr Heather McKenzie
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