Civil Recovery (Part 5 of POCA)
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Under Part 5 of POCA, law enforcement authorities are able to bring civil proceedings in the High Court in order to recover property obtained through unlawful conduct.
Such proceedings can be time-consuming and stressful for those caught up in them. Our cross-departmental team has extensive experience advising those who are respondents or third parties to civil recovery proceedings. We can advise at all stages of the process to ensure your rights are fully protected, and limit the impact of proceedings as far as possible.
Frequently Asked Questions
What is the civil recovery scheme?
Sections 243 to 288 of POCA sets out a procedure by which specified enforcement authorities can bring proceedings in the High Court to recover property that is or represents property obtained through unlawful conduct.
Who can bring civil recovery proceedings?
The following enforcement authorities are enabled by POCA to bring civil recovery proceedings:
- National Crime Agency
- Director of Public Prosecutions
- HMRC, by way of the power granted to the Director for Revenue and Customs Prosecutions
- SFO, by way of the power granted to the Director of the Serious Fraud Office
What property can civil recovery proceedings relate to?
For the purpose of civil recovery, all property is relevant, including money, real property, personal property, things in action, and other intangible property.
What does the enforcement authority need to show?
The enforcement authority bringing recovery proceedings must show that the property in question represents the proceeds of crime.
It must persuade the court that, on the balance of probabilities, unlawful conduct has occurred and property has been obtained through that conduct. However, there is no prerequisite for a conviction to have been obtained, and the applicant authority does not have to show who committed the crime.
What kind of conduct is relevant in relation to civil recovery?
Unlawful conduct for the purpose of civil recovery means a criminal offence in the UK, or conduct that occurs outside the UK, is unlawful under that country’s criminal law, and would be unlawful if it occurred in the UK.
What is the effect of a civil recovery order?
If the court grants a civil recovery order (CRO), a number of consequences can result:
- An interim receiver will be appointed
- Property may be detained or preserved
- Any ongoing civil recovery investigation by the relevant Director must cease.
- No one may deal with property to which the order applies
Are there any exemptions to the no-dealing rule?
Yes. There are exclusions for reasonable living expenses and for carrying on a trade, business or profession.
In addition, section 245C(5) of POCA allows for the release of funds to cover legal expenses in relation to interim recovery orders or property freezing orders (but not a defendant’s legal expenses in general).
