Forfeiture Order

A forfeiture order is a type of confiscation order available under the Confiscation of Proceeds of Crime Act 1989. It is a legal mechanism that allows the State to seize and assume ownership of property or monies that are deemed to be “tainted” (meaning that the property was derived from or used in connection with serious criminal activity). The power for the State to apply for a forfeiture order is contained under Part 2 of the Confiscation of Proceeds of Crime Act 1989. 

What is a ‘Forfeiture Order’?

A forfeiture order is a type of confiscation order where the State can seize and dispose of property that has been used in, or in connection with, the commission of a “serious offence”. The effect of a forfeiture order is that the property is forfeited to and vests in the State. 

The Court may make an order that the property is forfeited to the State if:

• An application has been made for a forfeiture order, and
• A person has been convicted for a “serious offence”, and
• The Court is satisfied on the balance of probabilities that the property is “tainted property” after applying Section 4 of the Act, and  
• The Court has taken into consideration and had regard to the materials before it of:
  • The use ordinarily made or intended to be made of the property, 
  • Any hardship to the Defendant or any other person that is reasonably likely to arise following the making of the order. 

When Can an Application for a Forfeiture Order be Made?

An application for any confiscation order including a forfeiture must be made within the “relevant period” as defined in Section 4 of the Act. The “relevant period” is 6 months after the day on which:

• The offender was sentenced, 
• An order was made in relation to the offence under Section 10 of the Crimes (Sentencing Procedure) Act 1999, 
• The Court took the offence into account on a ‘Form 1’, or 
• The person is taken to have absconded. 

Only the Supreme Court can give leave (permission) for an application for a confiscation order to be made outside the relevant period.

Notice of Application and Standing:

When a forfeiture order is applied for the “appropriate officer” is required to give written notice of the application to the person and to any other person that may have an interest in the property to be confiscated. This allows the person or others who claim an interest in that property to appear and adduce evidence at the hearing of the application. 

What Happens to the Property if a Forfeiture Order is Made?

When a Court makes a forfeiture order, the State is unable to dispose of the property immediately and must wait for the “relevant time” to expire. The “relevant time” period is defined in Section 18(4) to mean: 

• Where an appeal is lodged against the conviction of the serious offence or against the forfeiture order – The property cannot be disposed of until the determination of the appeal. 
• Where an appeal is not lodged against the conviction nor against the forfeiture order – At the end of the period given to appeal the conviction or the forfeiture order. 

Appealing Against a Forfeiture Order:

A forfeiture order is an appealable decision and an appeal can be brought by any person who has an interest in the property. An appeal must be made within 28 days from the making of the order. If the appeal is not filed within 28 days, it can be filed up to 3 months from the making of the order with leave of the Court.

Third Parties:

Sometimes an innocent third party will become involved in a forfeiture application due to having an interest in the property to be confiscated and forfeited to the State. In these circumstances, the third party (“the applicant”) may apply to the Court within 6 months of the forfeiture order being made to have the order set aside due to their interests in the property. 

The Court can make an order in favour of the applicant for if the Court is satisfied on the balance of probabilities that:

• The applicant was not in any way involved in the commission of the serious offence, and 
• The applicant acquired the interest at the time or after the commission of the offence for sufficient consideration, and 
• Without knowing and in circumstances that would not arouse a reasonable suspicion that the property was tainted at the time of acquisition. 

Seek Legal Advice:

If you have been given written notice of a forfeiture application it is essential that you seek legal advice immediately.