A Simple Guide To The Law On Civil Recovery Under The Proceeds Of Crime Act 2002 (POCA)
| Published date | 08 December 2021 |
| Subject Matter | Government, Public Sector, Criminal Law, Human Rights, Crime |
| Law Firm | BCL Solicitors LLP |
| Author | Mr John Binns |
Partner John Binns explains the way civil recovery works under the Proceeds of Crime Act 2002 (POCA).
Civil Recovery: The Basics
A confusing regime
As with everything else in the Proceeds of Crime Act 2002 (POCA), Part 5 (Civil Recovery) is almost hopelessly confusing. The fact that its six chapters are numbered 1 to 4 is only the start of it.
Chapter 1 starts promisingly, with a clear statement of purpose: to enable law enforcement agencies (such as the police) to recover property that was obtained by 'unlawful conduct', or that represents such property. But there are two twists to come.
Four systems, two courts
The first twist is that there are systems in two different courts, one in the High Court, and three in the magistrates' courts. In the latter, the agencies can also recover property that is 'intended for use' in unlawful conduct.
In either court, the fact that the proceedings are civil is important. It means that the standard of proof is 'the balance of probabilities' (not 'beyond reasonable doubt'), and that there is no need for a criminal conviction.
What is 'Unlawful Conduct'?
Conduct overseas
The conduct can have happened outside the UK. But where it did, it must have been both:
- against the law where it happened; and
- conduct that would have broken UK law, if it had happened in the UK.
The 'Magnitsky clause'
The second twist is that 'unlawful conduct' can also include (in either court) a 'gross human rights abuse or violation', anywhere in the world, whether it broke the local law or not.
This is a provision added to POCA by the Criminal Finances Act 2017 ('the CFA'), and which was designed to pay tribute to the murdered Russian lawyer, Sergey Magnitsky.
Gross human rights abuses
The definition of a 'gross human rights abuse or violation' in the Magnitsky clause is far more specific than it sounds, and must have (broadly speaking):
- involved the torture (or 'cruel, inhuman, or degrading treatment') of someone who has sought to expose illegal activity by a public official;
- been a consequence of such conduct; and
- been committed by or on behalf of a public official.
Arguably, though it made an effective political statement, this is a clause without much practical utility.
In the High Court
Chapter 2 of Part 5 is about the High Court system, which can be about any kind of property at all. Among other things, it has complex provisions about:
- 'associated property', which broadly speaking is about where 'clean' and 'dirty' assets are hard to...
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