Civil asset recovery investigations and proceedings

Part 5 of the Proceeds of Crime Act 2002 introduced provisions for the civil recovery of assets said to have been acquired through unlawful conduct. The idea is that the State can lay claim on assets said to have been acquired through criminal activity without the need for criminal convictions. Part 5 provides for the making of civil recovery orders and other provisions to assist the National Crime Agency (NCA) in the administration of such claims. These powers are complemented by additional powers in Part 8 including the ability to seek unexplained wealth orders, production orders and disclosure orders. Under Part 6 of the Proceeds of Crime Act 2002, the National Crime Agency can also assume the powers of HMRC tax inspectors and claim unpaid taxation where they suspect income or capital gains are accrued from criminal activity.

A Property Freezing Order is an Order obtained by the NCA at the outset of a civil recovery investigation. It has the effect of freezing specified assets and often compels the respondent to provide information. A respondent can make an application to set it aside or to vary it. It may allow for living expenses and legal expenses on a limited basis.

The NCA is able to make a civil claim in the High Court for recovery of assets belonging to any individual or corporate body on the basis that such property was acquired through unlawful conduct.  The relief sought by the NCA is known as a civil recovery order. Before making a civil recovery order, the Court must be satisfied on a ‘balance of probabilities’ that the subject property is ‘recoverable property’.

Recoverable property is quite simply property that has been obtained through unlawful conduct.

An Unexplained Wealth Order is an Order of the High Court requiring the Respondent to make a statement regarding his or her interest in items of property which are specified in the Order. It only applies to property that has a value of at least £50,000 where there are reasonable grounds for suspecting that the respondent’s income is insufficient to acquire the property and that he or she has been involved in serious crime.  An Unexplained Wealth Order may be sought by  If a respondent does not provide an adequate explanation, or unsatisfactory evidence, the asset may be presumed to be ‘recoverable property’ for the purposes of a civil recovery order.