Cash forfeiture and the meaning of draconian


I was due to represent a client in a cash forfeiture hearing this week, although it has been called off at the last minute.  But, I thought I’d take the opportunity to say a few words about these proceedings.

The point of the various financial seizure/forfeiture/confiscation orders is for the authorities to deprive criminals of cash found in their possession.  There are a few ways this can be done.  Confiscation proceedings follow a conviction for certain offences, such as drug dealing, money laundering, etc.  Put very simply, in confiscation proceedings the prosecution must show that a) the convicted criminal has benefited from crime to a value of X; and b) that he has realisable assets (in other words has cash or can sell goods) to the value of Y.  The court will then make an order that the defendant owes X but that he must pay Y wherever X is greater than or equal to Y.  Obviously if he can pay the total benefit figure (X) then he must pay that.  Failure to make payment can result in more time in prison.  Confiscation is not concerned so much with the source of the funds being confiscated as it is with the benefit that the criminal has derived from his crime.

Cash forfeiture is different and less widely known among the general public.  It focuses on cash, literally notes and coins, found in someone’s possession.  Possession, in this context means under his control, so it doesn’t have to be on his person but could be in a safe at home or (as in my case) locked away safe and sound in a security box at the bank.

The cash can be restrained initially by the police and then by order of a court.  Subsequently it can be forfeited if the prosecutor can show that the money is the proceeds of a crime or is to be used in the commission of a crime.  So, if a drug dealer has earned it or was planning to buy more drugs to deal then it can be forfeited.

I, and many other lawyers, say that cash forfeiture is draconian.

If the police arrest Mr Smith and accuse him of drug dealing (for example, although cash forfeiture is by no means restricted to drug offences) then they must produce evidence sufficient to make a jury certain (we used to say “sure beyond reasonable doubt”) that Mr Smith is guilty of the offence.  It is a high burden for the prosecution to achieve and it is right that it should be so because a conviction will likely result in prison, damage to a person’s reputation and future legitimate employment prospects, not to mention that the convicted person is then easy prey for a confiscation hearing.

Cash forfeiture requires no conviction and, in fact, does not even require that there be criminal charges contemplated let alone proved.  An application could even be made where the defendant has been acquitted, although I imagine the magistrates’ would consider that highly probative evidence.  

Cash forfeiture is a civil matter, which means that instead of deciding a case “beyond reasonable doubt” the magistrates (for these are always heard in the mags court) must decide whether it is more likely than not that Mr Smith either obtained the money through crime or intended to use it for a crime.  In effect, they must decide on whether he is a criminal.  This will have the same effect on his reputation, although he may not have to reveal it to an employer in future and he stands to lose his money.

Simply the massive reduction in the standard of proof may be enough to call this draconian, but then we look at how Mr Smith can defend himself against these actions.  He can either represent himself against highly trained and professional investigators and highly experienced lawyers in a very technical area of law or he can instruct a solicitor.  Fine, you may be thinking, he goes along to see The Defence Brief, gets some lovely legal aid and everything will be okay.  No.  Legal aid is not available for these proceedings so he needs to pay privately for representation.  Hang on a minute though; the police have already seized all his money.  No problem, we’ll ask the court to release some fund to pay for the lawyers.  Nice try, but no the court has no power to release funds to fight the application.

Where then does this leave Mr Smith (who may actually be innocent since he hasn’t been convicted of anything)?  Well it may leave him in a lot of trouble.

In my case, there is no suggestion of drugs but there is a somewhat unique explanation for the source of the money that is backed up by another party (and witnesses) claiming the cash belongs to them.  It’s so unique that I’m not even going to hint at it here.  The other party is represented by a solicitor who normally haunts the High Court and who has absolutely no experience of this area of work.  Personally, I think they may yet crash and burn because of their choice of representation, but that’s another matter.  I have tried to explain to that solicitor that the purpose of cash forfeiture is to get the loot, not to afford the owner of the money a particularly fair hearing.  I don’t think he believed me at the time, but he seems to be working it out the longer this drags on.

You can make up your own mind whether you think it’s draconian or not.  For my part, I wouldn’t object if the forfeiture requires proper proof to the criminal standard, but that is exactly why cash forfeiture is used: because the prosecution are struggling to prove to a criminal court beyond reasonable doubt that the defendant has done anything wrong!

Comments

  1. Definitely Draconian. Is anyone campaigning to change this?

    ReplyDelete
  2. Hmm. Sounds extremely dodgy. Perhaps there ought to be a way of getting the money returned if the guy is charged and the found not guilty.

    Then the easy way out would be for your man to prosecute himself - badly of course - and put up a robust defence. That should do it.

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  3. my heart bleeds for them.

    ReplyDelete
  4. I agree it is draconian. In the United States it is now routine for police departments to seize cash from people under any pretext. One method is to set up road blocks and if any cash is found which is deemed to be a suspicious amount to seize it. Often the victims of this are poor who have no access to the banking system and are keeping the cash on them to prevent it being stolen from their homes. Police departments routinely do this as an additional form of funding. One of the downsides of this is that police forces change their priorities so that instead of investigating violent crimes, they concentrate on the more "profitable" cases.

    ReplyDelete
  5. It's not draconian. It's necessary when money=power and criminally earned funds are so vital to continued criminal activities.

    Your client has a 'unique' source for the funds. Go to court, explain, get money back. Simples. It's not that difficult an area to DEFEND yourself to demonstrate a legal source.

    Please do, when you can, explain more about this 'unique' source so we can comment. Oh, and don't forget that tax evasion is a crime.

    ReplyDelete
  6. Having sat on numerous POCA applications it is easy enough to show that the £3500 you had in your sock really was intended for the purchase of a new car and not a few Kgs of the green stuff. All you do, as the 2 gentlemen did, to get your cash back is prove where it came from. Bank statements or tax returns will do. It really is seemples!!

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  7. Annonymous


    Well said!

    ANON

    ReplyDelete
  8. anonymous @ 13/01/11 12:16
    "It's not draconian. It's necessary when money=power and criminally earned funds are so vital to continued criminal activities."

    I think these are 2 separate points. In the criminal world "Fear = Power". Money is a smaller part of the equation. It is true, though, that criminally earned funds are helpful to continued criminal activities.

    "......It's not that difficult an area to DEFEND yourself to demonstrate a legal source."

    If it has been PROVEN that the funds were criminally earned then, rightly, you should have to defend yourself. If, however, it has never been proven then why should anyone have to prove that they are innocent?


    anonymous @ 13/01/11 12:16
    "It really is seemples"

    I don't believe it is that easy. Also...
    In your example, there still seems to be drug dealer running around selling drugs. Instead of following the suspect, law enforcement agents are running around seizing cash from otherwise innocent people. If the officer has enough cause to seize the cash then surely there is enough cause to launch a proper investigation. It all sounds like very lazy policing.

    ReplyDelete
  9. " In your example, there still seems to be drug dealer running around selling drugs. Instead of following the suspect, law enforcement agents are running around seizing cash from otherwise innocent people. If the officer has enough cause to seize the cash then surely there is enough cause to launch a proper investigation. It all sounds like very lazy policing."

    yes there is. but arrest the dealer, and another one will replace him in a second. make it known that there will be no financial benefit from dealing - because it gets taken away from you - and the incentive to deal is reduced across a market participants.

    criminal prosecution and incarceration is not a deterrent for much criminal activity nowadays. remove the incentive - financial benefit - for a much better legal system that actually creates desired outcomes.

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  10. re your second point on doing a proper investigation and criminal prosecution. yes, possible, but only with massive resources which we, the taxpayers, do not wish to pay for. much more effective to use the civil recovery route. As a taxpayer I massively support this.

    I am still waiting for concrete examples where someone has thousands of pounds in cash which is legitimate but has no documented source....

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  11. Unfortunately, in my experience cash forfeiture is rarely used against drug dealers for the simple reason that they didn't stop committing crime when these laws came in they simply began operating differently. It's a common tactic to use children to carry drugs or weapons about. Dealers will also often recruit seriously addicted drug users to make the individual deals, which makes it very difficult for the police to get to the actual dealer who controls the operation. So in reality cash forfeiture doesnt (in my experience) do anything much to reduce crime at all, which is a shame since the whole point of it was to ensure that crime doesn't pay.

    My favourite example of the silliness of this system was a man who came to see me once. He was a polite Asian man who had lived in the UK for a number of years and worked for a living (forget what he did now). He was stopped by the police and for some reason they decided to take him home, which was close by, so he could get his driving licence. During the unofficial search for the driving licence the police found a pile of cash amounting to about £750 in one draw and another pile of about £300 in another draw. The man and his wife came up with a totally unbelievable story that the £750 was "to pay the rent" and the £300 was house-keeping for the wife to buy food and pay bills. Complete rubbish said the officers and seized the lot under the cash forfeiture law. The mags court then extended the detention while the officers "investigated". This left the man unable to pay the rent or buy food that month.

    The cash was eventually returned as there was no evidence he'd done anything wrong at all. But, it shows how easily such powers can be misused if somebody choses to do so.

    ReplyDelete
  12. I understand that on paper legal aid is available for cash recovery cases. I can email details to anyone that might need such information my email address is mgrange @ lawlibrary.ie

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  13. Hopefully the High Court judgment in Angus -v- UK Border Agency will have some positive impacts.

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  14. Resulting from Angus, UKBA are reviewing cases and have settled one already.

    http://www.whatdotheyknow.com/request/poca_2002_act_cash_recovery_18#outgoing-123823

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  15. i have been fighting a cash forfeiture for 22 months i havent been charged with anything i paid for legal representation, then tried to get funding and this failed, so i went on my own and represented myself and last week i got my money back after winning my case at the crown court!! 22months of shit for nothing!!! what a load of shit!! just an easy way for the police to make money!! it is wrong

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  16. I have acted in a case where the client was stopped at the airport carrying £75,000 in cash. After 12 months HMRC were unable to prove any wrongdoing and had to send the money back, with interest (but no costs).

    Now many of you might be thinking "why on Earth would anyone carry that amount?" and I completely understand that.

    However, when did "cash" become a dirty word? Back in the days before global banking and computers all transactions were done in hard currency, and earlier still in gold.

    But money sitting in your pocket or in your house isn't money that banks can get their hands on and use for their own benefit. Technology has come a long way and electronic payments are now everywhere, but I dread the day when cash disappears because we will be completely and powerlessly at the whim of those that control the banking system. It's already happening and legislation such as this is yet another means to discourage legitimate users of cash.

    Does everyone trust banks more now than before? Frankly, putting money in a bank, to earn 0.1% interest or whatever it is now, so that more greedy bankers can get their hands on it, speculate and gamble, and possibly cause the bank to go up in smoke along with your money, isn't really an attractive option.

    I don't blame people hoarding something tangible that gives them the peace of mind and security that saving in a bank once did.

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  17. hi guys got 30k forfieture case against me just now ,wasnt charged with anything , then when produced 80k of winning bookie reciepts 5 months later ,police came back ,followin week and charged me with concerned in the supply of drugs cannabis , draconian , at least dick turpin wore a mask when he robbed you , since then i have been accused of importation , being a suspected heroin dealer ,hate the stuff ,that because i dont use the bank im al capone , as far as im aware there is no law against gambling or not using a bank ,also find it disturbing that a percentage of this money goes straight to the police ,think it is a disgrace , so police ,fical ,crown ,all in it together ,then u find out its the scottish ministers who authorised them to do it , the same ministers making shoddy deals with shoddy goverments , when is kenny mckaskill gettin proceeds against him for his paart in the megrahi afair ,dont tell me someone wasnt profiting there behind that web of deciept , no usual applies ,laws wrote so the rich get richer while the poor get poorer ,

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  18. forgot to mention in last report , in confiscation cases who came up with the number 6 years they can go back if youve been convicted of a crime from last year , i mean where do they get 6 years from , why not be even fairer and make it 10 or 20 years or why not just give everybody a fixed penalty of a cool million , draconian , this is worst than communist china .

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  19. another example , guy i know runs fotball bus to support his local team , was stopped by police and had $1100 cash on him which he had collected from regulers on bus for next away match tickets , police do a warrent check ,has previous conviction from 5 years ago for posession of cannabis resulting in 200 fine , police sieze cash , guy works cant get legal aid , turns up to find it will cost 2-3000 for lawyer to fight to get his legitimate 1100 back , so he deserts case , just not fair at all , disgrace ,

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  20. can anyone explain this , proceeds of crime is a civi law action , hearsay is prohibited in civil law , yet is allowed to be said in poca hearings , if you have been acquitted of a crime in criminal proceedings ,the e.c.h.r article 6.2 states ,that even the voicing of suspicions are not admissable as it casts doubt on the soundness of the earlier acquittal , yet this does not apply in scotland in the poca case , why ?

    ReplyDelete
    Replies
    1. Ed (not Bystander)26 January 2012 at 03:18

      Anonymous, I think I speak for everyone in begging you to go forth and multiply.

      Delete
    2. hi ed , just quick update on my 30k cash forfieture case ,as i told u 5 months after cash was siezed i produced 80k winning bookie reciepts,4 days later the police came and charged me with concern to supply ,since then my criminal lawyer has asked crown 4 times for evidence of wrongdoing against me , each time list of police that came to house , no evidence wotsoever , so now theyve tried to scare me into not fighting for cash back and thats not worked , theyve dropped the criminal charges but still not returned cash , so now my civil lawyer waits to hear what other bollocks they are gonna try next ,

      Delete
  21. my son is in prison. he stupidly asked a friend in spain to send some cannibis,a parcel was stopped at airport with drugs.on siezing my sons computer, it was found he lied to mortgage about wages when applying for a remortgage on his house 3 years ago.he wasnt discouraged by mortgage adviser. he pleaded guilty to both charges. he has been told to pay the whole value of his house to proceeds to crime. he isnt a criminal. he made stupid decisions. now may lose everything. this will ruin his life. he has a little boy. they dont care. i have to represent myself in court as i gave him deposit for his house. i cant afford a lawyer.hes never defaulted on his mortgage.this 2002 act should be for people who make other people suffer/get money for criminal means,

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  22. did yous know that the civil recovery unit get 50% of all succesful forfieture cases and that some of that gets syphoned to the police , which explains why they are like a dog with a bone when innocent people trying to get the cash back , leaves huge issue aswell as to police are not just acting as a custodian of the cash like in the police property act instead they are a definate interested party and will benefit from any succesful forfietures , says it all really , when u consider that in 2009 the recovery unit collected 26million in july and augest alone which 5million went straight to police forces in england and wales , these figures came straight from the soca proceeds of crime department , the value of this act to police should not be underestimated , totally draconian.

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  23. I have recently has my home searched after my teenage son was caught giving a friend cannabis. The police took £1300 From my home this was mine and was to take on holiday the following day. Sadly I had to take £1000 from my savings. To cover the holiday spending for 7 people. Althought I have no criminal connections and. A few petty previous convictions. The police stopped me later that evening while out walking with my kids and took the further £1000 from me and assaulted me in front of my kids I was charged with resisting arrest police assault and breach of piece I was detained and stripped searched. I am 42 years old never been involved in drugs or any thing like that I feel like I have been raped. I am a local authority child minder and I have 3 online shops. How can this happen. ?
    I said I was going to complain about the treatment I had recieved. Next day police storm my home arrest me my wife and her friend we were all charged with concerned in the supply of drugs. Wife and friend have never been in troubled with police nor have they any connection to crime how can this happen ?
    I have to appear at court 10th may. To beg for my money back. I am destroyed that the police can do this innocent people.

    ReplyDelete
    Replies
    1. Ed (not Bystander)7 May 2012 at 20:23

      If your story is true, get legal representation and doubtless you will be able to get your money back.

      Delete
  24. I think this law is dacronian and so do solicitors, sometimes you just can't prove where money comes from especially if your a builder how many jobs do you do cash in hand to pay for materials for a job we have all done it so does that make us a criminal, plus i didn't know it was law to put your own money in a bank. so many people these days don't trust banks and who can blame them. I 've been there and it's like banging your head against a brick wall, there the robbers, they take what they want because they can.

    ReplyDelete
  25. alan , glasgow26 June 2012 at 12:38

    hi again guys , im the one with the 30k cash forfieture case u may have read earlier , as i said earlier only after the police found out i was contesting this with 90k of winning bookie reciepts , the police came and lifted me on a sat morning and charged me with concern to supply cannabis , now remember this is 5 months after they took the cash , so they put me on a petition , lay in all weekend ,now after this dragging on , they drop the concern charge as it was to scare me of challenging the cash , got 500 cash fine for possesion of cannabis ,fair enough ,so they knew they had nothing for concern to supply all along , the police never even arrested me the nght they took the cash , the police and crown are abuseing this system as the recovery unit are serious organised crime agency in disguise , and are recieving half of all succesful forfieture cases , as soca are the so called super duper police , the ordinary police are kicking up a stink that they are only getting a percentage and are demanding more than the 1.9 million they recieved from soca,s 24 million last year ,i would also like 2 make a point that everyone seems to b missing , example , if the scdea or soca were on to a gang who were bringing in say 5oo kilo of cannabis which they would value at nearly 1.5 million and theyve watched the gang load some van ,and are following it , are they really gonna stop that van before it has been sold or are they gonna let the gang sell most of it under surviellance , and then raid when the cash is there , what do yous think , i.5 million of cannabis in the incinerator , or 1.5 million in thier purse which they get to keep half of if the drugs haave been sold , now imagine it with cocaine where the 500k is worth say 50-100 milllon , now u tell me if u think that van is getting stopped full of cocaine , or full of cash , point being if youve dealt at all with these proceedings you would know there going for most of the cash with a small percentage o the originall drugs they seen loaded in the van ,so is it just me , or does anyone else agree that by the scdea or soca or normal police recieving any , no matter how much of this vile cut they recieve , has a definate impact on the amount of drugs being allowed to be sold on the street , u could argue that this policy is now a tactic that the police are as bad as the drug dealers , and if every gang stopped 2moro the police ,soca , scdea and crown would be gutted and seriously out of pocket ,they should recieve zero , and when real drug dealers with wads of cash are caught ,they should be opening large sports centres maybe called the glasgow poca sports centre for the kids of the future ,as it stands all this cash is not going where it should , i mean there giving 80k to build a community centre in milton or ruchill , when we should be seeing athltics tracks ,swimming , football and all other top sports facilities , colleges and even universities shoould be getting built with al this cash and maybe the kids of the future would have greater chance of education and sports , i woulld also suggest that everything built should be named for example , the proceeds of crime college , the proceeds of crime university ect , this way the public would and could see that crime doesnt pay ,and youngsters would b getting educated and sports scholarships instead of hanging around the streets where the drug dealers are .

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  26. On my way to My country my 10.4 k was siezed in Airport under POCA I was trying to help some body in the hospital who needed immidiate surgery.Some of the money was belong to my father and my friend and some me.I show them bank statement where the money has come out from.
    They have not returned to me after six months so called investigation to my financial affairs e.g.Banks/tax return/etc etc. I am going to Magistrate court shortly.And the patient in the forieng hospitals needed operation badly.I could not send it through banks as My country is sanctioned by European banks.Very Surprise of such a law in UK.

    ReplyDelete
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  35. I am going through this currently Police visit my apartment where i live and run my business from on an alleged harrassement investigation.

    The police approached my residence with immediate brutal force kicking my door so i open to see to deshevelled men in tatty clothes and a bullet proof vest on requesting the usual you would "who are you" they force the door with a kick and a push and i fall into my apartment and then they CS gassed me as i sit on my sofa requesting again who they are. They then began ramsacking my apartment looking for a phone and computer as possible items of evidence to the false claim made by an ex girlfriend who i refused to date again after she became possesed and crazy.

    Anyways whilst searching my property the police discover £90,000 of cash as the final item even though they already had everything they came to collect. They asked why do you have £90K which i tell them i own an online fashion business i deal mainly in cash with my suppliers due to the convinience & speed, my personal insecurities with the banking system as having an online store i see numerous attempts by fraudsters using others cards and my self being defrauded previously. I told them all the money had been withdrawn from the bank aswell as the cash being inheritence which i offered to show them proof which they refused to see and told me you will have your chance later. When questioned on their power and reason to seize cash they said for all we know you may have robbed a jewellery store. So this is all we need to take it.

    Its now been 4 weeks they said they were seizing it under PACE as evidence! (EVIDENCE OF WHAT) Theyve still not said......only on week 3 -4 did they conduct an interview for me to divulge the sources of the money which i was told to attend by my dumb ass backwards lawyer.

    They did not put POCA proceedings against me within the 48hours of seizure i didnt get presented with an itemised seizure bill until 5 days after seizure after i pressed them for it and still they have filed no action against me under POCA and as of now are just sitting on my cash refusing release now claiming im a money launderer which they threatened to arrest me under unless i attend the interview. Prior they said i have the cash possibly from a bank robbery or jewelery store heist none of these hold fact or intelligence.

    And say they will not return my cash until theyve investigated me for money laundering. Despite the wealth of evidence that counteracts anything criminal infact provide beyond reasonable proof of legitimate earning.

    Ive given inheritence docs, inheritence cheque clearance, bank account statements, account details, website sales list with detail customer info.

    Still refusing to release money. May i state i am a 26 year young black male and do feel the cops heading this case are racist and despite clear evidence refuse to believe i can possibly be who i and the evidence says i am snd there must be a microscopic piece of evidence they cannot see that just counteracts all to prove me criminal.

    Ps no prior convictions clear records nothing on me no previous dealing with this cop no supporting evidence found on the scene eg kilos of cocaine or guns to suggest true evidence on reasonable grounds the cash is criminal. Niente

    Are they allowed to just hold my money like this?

    ANY GOOD LAWYERS NOT PUSSYCATS NOT FRIGHTENED TO CHALLENGE THE COPS ON UNLAWFUL ACTIVITY THAT CAN SECURE THE RETAIN OF MY CASH QUICKLY WITH COMPENSATION DOWN THE LINE

    PS MY BUSINESS IS GOING INTO THE DUMPS AT THE SPEED OF A PLANE 20,000 FEET UP WITH ENGINE FAILURE ....NO PERSONAL COMPUTER, NO PHONE, NO MONEY, NO NOTHING

    HELP ADVICE PLEASE

    CALL ME PLEASE IF YOU CAN DO SOMETHING

    +44 7948 554286

    ReplyDelete
  36. Not that simple. Anyone saying its not Draconian hasn't got first hand experience of having their rightfully earned cash seized bank accounts frozen and name been mudded as a drug dealing money launderer (a title added by the Police who use this part of the law for corrupt gains of peoples funds who I frankly feel they are jealous of for having it when they are on minimum government wage) I am going through this currently had £90,000 taken from my home by Police on an alledged harassment investigation from a psychotic ex girlfriend and luckily stumbled upon my money which is the result of my internet business I work from home on. Even though the evidence of moral earnings was clearly evident with the stock piled up in my home and the numerous amount of computers and also the location not being somewhat suspicious to anything other than a legitmate home business and even with immediate documentation shown on site to the officers they still said you will get you opportunity later to prove to us its not here as the result of drugs or bank robbery.

    See the reason its Draconian because Police are purposefully ignoring obvious evidence that outways any wiff of criminal earnings with the sick corrupted efforts to just tax people for no real reason. In law it clearly states there must always be reasonable ground to suspect someone is a criminal or their evidence is the result of a crime.... cash per say is not by any means criminal...just because someone has an amount unfathomable to someone who earns minimum wage like the police and cannot dream of ever touching or seeing an amount of cash to the tune of what they are calling the proceeds of crime because of the dollar amount, if there is not unfortunate supporting evidence found on site I believe it is wrong to immediatel brandish someone as a criminal because the truth is it is more likely to be the result of moral earnings rather than criminal just because someone decides to keep their money in cash is not a justified reason to seize it as it is legal tender to trade with as issued by the Queen so in that case I and anyone else should be able to exercise their right to keep it in physical form should they choose so.

    ReplyDelete
    Replies
    1. I'm sorry to hear that.

      I hope you have a solicitor who can help you; I haven't dealt with a cash forfeiture case since I wrote this post so am definitely not the person to help you now. But, if you do need a solicitor I can recommend a firm that has expertise in litigating these matters plus has just about the best advocate around when it comes to these cases.

      If you want a referral please feel free to get in touch via: http://www.londondrinkdrivingsolicitor.co.uk/contactus.php

      Delete

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