Playing Poca with your holiday money
All Rights Reserved
The Times (London)
August 29, 2006, Tuesday
FEATURES; Times2; Pg. 21
Playing Poca with your holiday money
David Sonn
A CUSTOMS officer asks you if you're carrying any cash or travellers' cheques ... do you say "yes" or "with respect, it's none of your business"?
Most lawyers -never mind the travelling public -are unlikely to have paid particular attention to the Proceeds of Crime Act 2002 (recovery of cash in summary proceedings: minimum amount) Order 2006.
That could be a costly mistake. The Act, known by its acronym Poca, brought in a procedure where a customs officer or constable can seize cash if he has reasonable grounds for suspecting that it is recoverable property -which means the proceeds of crime -or is intended for use in unlawful conduct.
The cash may be seized only if it is more than the "minimum amount". When first enacted, the minimum was £ 10,000. In 2004 that figure was reduced to £ 5,000 and from July 31 to just £ 1,000. Cash, as defined in Poca, is notes and coins in any currency, postal orders and cheques including travellers' cheques.
An honest tourist who withdraws his spending money from the bank before heading off on holiday would probably be able to satisfy a customs officer as to the provenance of his money -but it would be prudent to take evidence of the withdrawal with your travel documents. But what of the tourist who speaks little or no English or who has accumulated his cash over time? He may not find it so easy.
The traveller who doesn't have enough time to hang around to be questioned on tape and under caution, for fear of missing his flight, runs the risk of his cash being seized. When a magistrates' court considers an application for authority to detain the cash for up to three months, as it must within 48 hours of the seizure, the tourist is already abroad, strapped for cash and unable to have his say at the court hearing -unless, of course, he can appoint a solicitor (legal aid is not available for this sort of case) at short notice, adding to his financial woes.
How would a constable or customs officer know who is carrying a quantity of cash? Assuming we have the cash in our pockets or hand luggage, it may be revealed during the airport security search. Or, travellers might simply be asked if they are carrying cash.
The unprepared traveller will happily volunteer that he has more than £ 1,000 cash or travellers' cheques, swiftly finding himself under interrogation. So next time you're asked that question at an airport, seaport or elsewhere, a polite "mind your own business" is recommended.
The customs officer must then decide if he has grounds to compel a search, mindful of the codes of practice governing such searches. He will know that if a search takes place under compulsion and fails to lead either to a seizure or to a seizure of cash that is not held for more than 48 hours, then -unless the search was with prior judicial approval -he must give a written report to the "appointed person". Under Poca, that is a person appointed by the Secretary of State who once a year must make a formal report of all such "failed searches" in the previous year.
So if you're heading off to Las Vegas you may be well advised not to withdraw your stake money until you arrive.
The author is a partner at Sonn Macmillan, specialising in fraud and money laundering
