Interim Possession Orders Cannot Undercut POCA Cash Forfeiture: Challenges Must Proceed by Judicial Review

1. Introduction

Mohammed Ameen Mirza against The Lord Advocate and another ([2026] CSOH 31, Outer House, Court of Session, Lord Braid) arose from the long-running retention of substantial sums (£903,370 and €3,295) originally seized by HMRC on 22 October 2015 in connection with an alleged VAT fraud.

After criminal proceedings concluded on 9 December 2025 and a production release note issued on 23 December 2025, the funds were not returned. Instead, HMRC withdrew the funds as a cheque and seized it on 16 February 2026 under section 294 of the Proceeds of Crime Act 2002 (“POCA”). Within 48 hours, the Civil Recovery Unit (via the first defender) commenced forfeiture proceedings in Glasgow Sheriff Court under section 298.

The pursuer’s motion before the Court of Session sought an interim order under section 47(2) of the Court of Session Act 1988 to obtain possession ad interim of part of the seized sums (£534,545 and €3,295), arguing (in substance) that the later POCA seizure and the forfeiture process were tainted by illegality/abuse given the period of post-proceedings retention.

The key issues were therefore (i) whether the Court of Session should intervene by interim order while sheriff court POCA forfeiture proceedings were ongoing, and (ii) the proper procedural route to challenge the seizure/forfeiture (ordinary action vs judicial review), alongside important points on what counts as “cash” and what constitutes a “seizure” under POCA.

2. Summary of the Judgment

Lord Braid refused the pursuer’s motion for interim possession. Although the court expressed scepticism that either defender had a lawful entitlement to retain the pursuer’s money between 23 December 2025 and 16 February 2026, it held that:

• There was no “deemed seizure” before 16 February 2026 because POCA’s definition of “cash” does not include sums in a bank account.
• “Seizure” under POCA denotes a formal act requiring a conscious decision that statutory criteria are met.
• The pursuer had not pled a prima facie case that the 16 February seizure or the sheriff court forfeiture proceedings were invalid or an abuse of process, particularly given his concession that officers had reasonable grounds to suspect the cash was recoverable property.
• The appropriate forum to determine whether the cash should ultimately be returned is, absent successful judicial review, the Glasgow Sheriff Court in the ongoing forfeiture proceedings.
• A challenge to the seizure (and/or an attempt to stop the sheriff court process) would require judicial review; the court declined to re-cast the action as a judicial review petition under RCS 58.15.
• Even apart from merits, the requested section 47 relief was inappropriate (and, insofar as framed as compelling transfer/payment, incompetent as an order ad factum praestandum to pay money), and the balance of convenience favoured preserving funds pending POCA determination, to prevent dissipation.

3. Analysis

3.1 Precedents Cited

3.1.1 Re-seizure/abuse arguments and “grace periods”

The pursuer relied on R (on the application of Kingdom Corporate Ltd) v Revenue and Customs Commissioners [2024] 1 WLR 2157 and Chief Constable of Merseyside Police v Hickman [2006] EWHC 451 (Admin) to support the proposition that re-seizure (or seizure following prior possession) may amount to an abuse of process/power in certain circumstances. Lord Braid accepted that English authority “pave[s] the way” for such challenges in principle, but held the pursuer’s pleadings were currently insufficient to ground an abuse challenge in this case, especially given the conceded reasonable suspicion.

The defenders invoked Chief Constable of Merseyside Police v Hickman [2006] EWHC 451 (Admin) and The Scottish Ministers v Wrigley 2006 SLT (Sh Ct) 42 as authority for a “reasonable grace period” after a prior detention power ends, during which authorities may decide to seize under section 294. Lord Braid did not accept that these cases proved a lawful entitlement to retain cash for six weeks post-release note. In particular, he read English law as tending to undermine (not support) the idea of a broad common law power to retain property once a statutory basis ends.

3.1.2 Limits on common law retention; the relevance of the original detention power

Iqbal v South Bedfordshire Magistrates Court [2011] EWHC 705 (Admin) featured centrally in examining how section 294 can operate where money has been held under other statutory powers. Lord Braid noted that, in England, an identifiable statutory source (there, section 22 of PACE) allowed retention “so long as is necessary,” and that Iqbal suggested the section 294 decision must be taken within a “short time” in that statutory context. That supported Lord Braid’s view that any permissible “grace” must be assessed by reference to the source of the original entitlement to hold the property.

Lord Braid also cited Gough v The Chief Constable of the West Midlands Police, [2004] EWCA Civ 206 (referred to in Iqbal) for the broader proposition that police generally lack a common law power to retain property after a statutory power lapses, save perhaps briefly to seek fresh lawful authority. He further relied on Hickman’s observation that police have no common law right to retain property against the owner merely because they believe it to be proceeds of crime, suggesting that (as a matter of principle) HMRC should not enjoy a broader common law retention right.

3.1.3 “Seizure” as a formal act; no deemed seizure of banked funds

On the “deemed seizure” argument, Lord Braid relied on POCA’s cross-Part definition provisions and on Iqbal v South Bedfordshire Magistrates Court [2011] EWHC 705 (Admin) (para [29], point 10) for the proposition that “seizure” denotes a formal act requiring a conscious decision that the statutory criteria are met. Because POCA “cash” excludes sums in a bank account, there could be no “seizure” of the banked balance before the cheque was uplifted and seized.

3.1.4 Does irregularity in seizure invalidate forfeiture proceedings?

The defenders relied on The Secretary of State for the Home Department v Tuncel & Basbaydar [2012] EWHC 402 (Admin) and R v Soneji [2006] 1 AC 340 to argue that technical irregularities should not defeat forfeiture/confiscation outcomes by mandating return of suspected criminal proceeds. Lord Braid did not decide the point (because it was not procedurally necessary in this action), but made two notable observations:

• If the seizure were invalid due to abuse, he was “not persuaded” that this is the type of “bona fide error” contemplated in R v Soneji [2006] 1 AC 340.
• He quoted approvingly from The Secretary of State for the Home Department v Tuncel & Basbaydar [2012] EWHC 402 (Admin) (para [18]), which (drawing on R (on the application of Hoverspeed Ltd) v Commissioners of Customs and Excise [2003] QB 1041) rejects a broad “fruits of the forbidden tree” doctrine in forfeiture contexts unless the statutory scheme makes forfeiture dependent on lawful discovery/seizure.

3.1.5 Proper procedural route: judicial review and RCS 58.15

On forum and procedure, Lord Braid relied on Ho, Ho, Hong and Chin v Lord Advocate 2004 SC 1 for the proposition that the legality of seizure and related restraint of sheriff court proceedings must be pursued by judicial review. He rejected the pursuer’s invitation to convert the action into a judicial review petition under RCS 58.15, emphasising that the rule is not intended to allow the court to “fashion a case” that has not been pled, and noting that it was far from obvious permission would be granted on the present pleadings.

3.1.6 Interim remedies involving money and the limits of ad factum praestandum

The first defender invoked Scottish Power Generation Ltd v British Energy Generation (UK) Ltd 2002 SC 517 to illustrate the court’s caution with interim orders affecting money (e.g., consignation), typically limited to sums “admittedly or certainly due.” Lord Braid also accepted the general point (supported by MacPhail’s Sheriff Court Practice) that an order ad factum praestandum is not competent to compel the payment of money, and treated that as an additional barrier to the interim transfer sought.

3.2 Legal Reasoning

3.2.1 The court’s three preliminary questions

Lord Braid structured the decision around three preliminary questions (paras [13]–[16]):

1. Lawfulness of retention (23 Dec 2025–16 Feb 2026): He was “unpersuaded” that either defender had any entitlement to retain the money during this period. Importantly, he distinguished between (a) scepticism about post-release-note retention and (b) the different question of whether that scepticism automatically invalidated the later section 294 seizure.
2. When seizure occurred: Seizure occurred on 16 February 2026 (not earlier), because “cash” excludes bank balances and seizure requires a formal act.
3. Whether prior possession/banking disqualified section 294: It did not; authorities allow seizure even where the funds were previously detained under other powers.

3.2.2 The “core issues”: legality of seizure/forfeiture and the correct forum

Lord Braid then identified two core issues (para [17]): the effect of the preliminary conclusions on legality of seizure/forfeiture, and whether the action was the correct forum. The decisive move was procedural and institutional: the sheriff court forfeiture process was ex facie valid and provided a statutory basis for continued detention, and the pursuer had not brought the correct type of challenge (judicial review) to attack the seizure or to stop/suspend the forfeiture proceedings.

On the pursuer’s attempt to frame the matter as abuse of process, Lord Braid highlighted the mismatch between (i) the conceded existence of reasonable grounds to suspect recoverable property, and (ii) the thinness of the allegations said to constitute abuse (including the limited relevance of alleged assurances by the prosecution, given the differing capacities/roles). He also posed a practical “counterfactual” test: if the cheque had been returned and immediately re-seized, would that be an abuse—and if not, why would the actual sequence be abusive? While leaving the question open for future pleading, this analysis explained why no prima facie abuse case existed on the present record.

3.2.3 Interim relief: balance of convenience and the nature of “possession” under section 47

Even if the merits were arguable, Lord Braid held the balance of convenience favoured the defenders (para [20]): public interest in preventing dissipation of suspected recoverable property outweighed the pursuer’s stated needs (fees, fine, and sequestration pressure).

Separately, he treated the pursuer’s section 47 motion as misconceived in function (para [21]): section 47 interim “possession” is implicitly preservationist, while the pursuer sought possession in order to spend the money. He also held that, insofar as the order sought compelled transfer/payment, it was not competent as an ad factum praestandum order for money.

3.3 Impact

Although an interlocutory decision on interim orders, [2026] CSOH 31 is significant for how it practically aligns Court of Session interim remedies with POCA’s cash forfeiture machinery:

• Reinforcing forum discipline: When section 298 forfeiture proceedings are live, the Court of Session will be slow to “interfere” by ordering interim return; disputes about forfeiture competency and entitlement to release are expected to be litigated in the sheriff court process, unless and until a judicial review succeeds.
• Clarifying “seizure” mechanics: The judgment confirms, in a Scottish POCA context, that “seizure” is a formal act and cannot be backdated by “deeming,” and that POCA “cash” excludes bank account balances—important where authorities move funds into banking instruments and later re-materialise them as cheques.
• Narrowing interim possession for dissipative aims: The decision indicates that section 47 “possession” is not an appropriate vehicle to enable expenditure of disputed funds pending statutory forfeiture determination.
• Open question left for future cases: Lord Braid’s scepticism about the lawfulness of the six-week post-release-note retention may encourage future litigants to bring targeted judicial review challenges (e.g., to compel delivery up, or to attack delay/retention decisions), but the case shows that scepticism alone will not secure interim return once POCA forfeiture is engaged.

4. Complex Concepts Simplified

• “Recoverable property” (POCA): Property obtained through unlawful conduct (here, suspected proceeds of VAT fraud), which can be targeted in civil recovery/forfeiture regimes.
• “Cash” under POCA: Defined to include items like cheques, but not money sitting in a bank account. This matters because POCA’s cash seizure powers attach to “cash” as defined.
• Seizure vs retention: “Retention” can happen for different reasons (e.g., as a criminal “production”). A POCA “seizure” is a separate legal event: a formal act taken when statutory criteria are met, which then unlocks POCA detention and forfeiture procedures.
• Forfeiture proceedings (section 298): A statutory court process (in Scotland, before the sheriff) to decide whether detained cash should be forfeited. Once such proceedings are commenced, POCA provides for continued detention pending their outcome.
• Judicial review: A specialist procedure used to challenge legality of decisions/actions by public authorities. The court held it is the proper route to challenge the legality of the seizure and/or to try to stop the forfeiture process.
• Interim possession (section 47, Court of Session Act 1988): A power to regulate who holds property temporarily during litigation. The court treated it as aimed at holding/preserving property, not facilitating spending while another statutory process is deciding forfeiture.
• Order ad factum praestandum: An order compelling performance of an act. The court accepted it cannot competently be used to compel payment/transfer of money as sought here.

5. Conclusion

Lord Braid refused interim return of funds notwithstanding serious doubts about the defenders’ post-release-note basis for retaining them, because (i) the relevant POCA seizure and forfeiture processes were ex facie in train, (ii) the pursuer had not pled a prima facie case of invalid seizure or abuse, (iii) any such legality challenge required judicial review, and (iv) the balance of convenience and public interest favoured preventing dissipation pending the sheriff court’s statutory determination.

The decision is best read as a practical rule of restraint: once section 298 forfeiture proceedings are live, the Court of Session will not use section 47 interim possession to circumvent the POCA scheme—particularly where the pursuer seeks funds to spend—leaving the merits to the sheriff court (and legality challenges to judicial review).