In Campbell v Bromley Magistrates’ Court [2017] EWCA Civ 1161, the Court of Appeal has confirmed that that there are no "fruits of the forbidden tree" consequences when it comes to the forfeiture of cash seized in accordance with Chapter 3 of the Proceeds of Crime Act 2002 (“POCA”).

A search warrant executed at the Appellant’s home had resulted in the seizure of a quantity of cash and the Appellant’s arrest on suspicion of money laundering. The cash was detained and subsequently forfeited under section 298 POCA on application by the police. The Appellant sought to challenge the decision of the Magistrates Court to proceed to a forfeiture hearing without its first determining, at a preliminary hearing, the lawfulness of the search and the subsequent detention of the seized cash.

The Court rejected the Appellant's submission that if a challenge is raised to the lawfulness of either the original seizure or, as here, the subsequent detention of the cash, that matter must be determined as a preliminary issue by the court hearing the forfeiture proceedings. Instead, it held that the only question for consideration by a magistrates court when dealing with an application for the forfeiture of cash was whether, as a matter of fact, the conditions in section 298(2) were satisfied, namely:

(2) The court . . . may order the forfeiture of the cash or any part of it if satisfied that the cash or part –
(a) is recoverable property, or
(b) is intended by any person for use in unlawful conduct. 

No inquiry, therefore, was required as to the legality of the search or whether the cash was properly detained under section 295. The Court approved the following passage of Keith J in UKBA v Tuncel and Basbaydar [2012] EWHC 402 (Admin); [2012] 1 WLR 3355 [18]:

 …there is no doctrine in cases concerning the forfeiture of cash denying the authorities the 'fruits of the forbidden tree', unless the relevant statutory regime made the forfeiture of the cash dependent on the cash having been lawfully seized and detained in the first place... I do not think that the relevant statutory regime did that.

Accordingly, the case reduced to three points:

- The only question for consideration by the court when dealing with a forfeiture application is whether, as a matter of fact, the conditions in section 298(2) are satisfied;

- The purpose of section 298(1) is merely to impose a temporal limit upon the ability of the constable to seek a forfeiture order; and

- Accordingly, section 298 does not require 'a gateway for forfeiture' that the cash was properly detained under section 295.

The decision is welcome for police forces and should be relied upon in forfeiture applications if any point is taken by the defendant in relation to the lawfulness of the search warrant itself, conduct of the search or the detention of any seized cash. There is no requirement for an inquiry into these matters before or at the the point of forfeiture. Police forces should continue to ensure that their powers of seizure are engaged under Chapter 3 POCA and that the property seized is properly “cash” within the meaning of that chapter: see R (Merida Oil Traders Ltd) v Central Criminal Court and others [2017] EWHC 747 (Admin).

It is also worth recalling:

- Section 294(1) requires no prior conditions to be satisfied in order for a constable to seize cash save that the officer must have reasonable grounds for suspecting that it is recoverable property or intended by any person for use in unlawful conduct. There is no requirement for the officer to be present lawfully on the premises from which the cash is seized or for the cash to have been seized lawfully pursuant to any other statutory power;

- The lawful seizure of cash pursuant to section 294 does not extinguish any other civil remedy that a respondent may have in relation to any entry or any damage caused thereby; 

- Section 298(3) refers relates to a power of search. It makes no reference to seizure. There is no requirement in section 294 for cash to have been seized following a search conducted in accordance with section 298(3);

- Where cash is seized pursuant to a power other than section 294 prior to its later seizure pursuant to it, the later seizure should still be valid and lawful. A seizure pursuant to section 294 in no way purports to 'cure' a previous, defective seizure under a different statutory provision; it is not a "re-seizure" of cash using the same statutory power. It is arguably a fresh or alternatively, an original seizure pursuant to a different statutory provision: see Chief Constable of Merseyside v Hickman [2006] EWHC 451 (Admin).

- Notwithstanding that property seized pursuant to a defective warrant must ordinarily be returned, it is arguable that a person cannot be entitled to retain or have returned cash which is recoverable property. A finding by a magistrates' court that seized cash is recoverable property, in that it is derived from unlawful conduct, must mean that the cash has always been recoverable property. It is properly arguable that no person can have a legal right to continued or uninterrupted possession of cash which is recoverable property and/or derived from unlawful conduct.