Fletcher v Leicestershire Constabulary

Forfeiture under section 298(2)(b) of the Proceeds of Crime Act 2002 may be ordered where cash is criminal property and the person who hid it intended to retrieve and use it, even though the precise original criminal conduct cannot be identified. The relevant intention may be inferred from circumstantial evidence. “Use in unlawful conduct” includes converting, transferring or removing criminal property where those acts themselves constitute offences under section 327. The provision applies even where the cash was found and handed to the police by an innocent person. The more specific requirement in section 298(2)(a) does not prevent section 298(2)(b) from operating on these facts.

An appeal by way of case stated arose from a Crown Court decision dismissing an appeal against a magistrates’ court forfeiture order. An innocent finder discovered £17,940 hidden in a derelict flat after a fire. The Crown Court inferred that the money had been obtained through some unspecified criminal conduct and that its unknown owner intended to recover and spend it. It ordered forfeiture under section 298(2)(b) of the Proceeds of Crime Act 2002, while accepting that section 298(2)(a) could not be used because the type of unlawful conduct was unidentified. The issues were whether those inferences were permissible and whether the cash was legally capable of forfeiture under section 298(2)(b).

1. Inferences. The Crown Court was entitled to infer, on the balance of probabilities, that the money represented the proceeds of some unlawful criminal conduct. The amount, concealment in an unoccupied flat, lack of any claimant, uniform bundling and absence of identifying fingerprints supported that conclusion. It was also entitled to infer that the hider intended to return and recover the money, since the circumstances made abandonment unlikely.
2. Intended unlawful use. Once the cash was treated as criminal property, the hider’s intended recovery and spending of it amounted to an intention to convert criminal property. Concealing, converting, transferring or removing such property would engage section 327 of the Proceeds of Crime Act 2002. The requirements of section 298(2)(b) were therefore satisfied.
3. Construction of section 298(2)(b). “Use in unlawful conduct” was not confined to using criminal proceeds for further criminal activity, such as buying drugs. It included acts involving the money itself which constituted offences under section 327. The statutory wording did not permit an exception for an innocent finder, and section 298(2)(a)’s identifiable-conduct requirement did not make section 298(2)(b) otiose. The apparent overlap between the two limbs was a consequence of the statutory language and the breadth of the section 327 offence.
4. Disposition. The four questions stated by the Crown Court were answered in the affirmative in substance. The appeal was dismissed.

1. High Court (Administrative Court): On an appeal by way of case stated from the Leicester Crown Court, the court answered the four questions in substance affirmatively and dismissed the appeal.
2. Leicester Crown Court: Dismissed the appeal from the magistrates’ court and ordered forfeiture under section 298(2)(b) of the Proceeds of Crime Act 2002.
3. Magistrates’ court: Made the original forfeiture order.