Civil Recovery and Unlawful Conduct under POCA 2002
Introduction
Part 5 of the Proceeds of Crime Act 2002 (POCA) provides a civil route for the recovery and forfeiture of property linked to unlawful conduct. It applies whether or not criminal proceedings have been brought in relation to the property.
Section 240 – General Purpose of Part 5
Part 5 has two primary purposes:
To enable an enforcement authority to recover, in civil proceedings before the High Court (or Court of Session in Scotland), property which is, or represents, property obtained through unlawful conduct
To enable such property, or property intended to be used in unlawful conduct, to be forfeited in civil proceedings before a magistrates’ court (or sheriff in Scotland) and, in some cases, by notice
These powers apply to any property, including cash, whether or not criminal proceedings have been brought.
Section 241 – “Unlawful Conduct”
Conduct within the UK is unlawful if it is criminal in that part of the UK.
Conduct outside the UK is unlawful if:
It is unlawful under the criminal law of that country or territory, and
It would also be criminal if it occurred in any part of the UK
Conduct outside the UK is also unlawful if it constitutes, or is connected with, the commission of a gross human rights abuse or violation (see section 241A) and, if it occurred in the UK, would be an offence triable on indictment or either way.
The court (or sheriff) decides, on the balance of probabilities, whether unlawful conduct has occurred or whether property was intended for use in unlawful conduct.
Section 241A – “Gross Human Rights Abuse or Violation”
Conduct amounts to a gross human rights abuse or violation if three conditions are met:
First condition: The conduct is the torture, or cruel, inhuman, or degrading treatment of a person who has sought to expose illegal activity by an official or to defend or promote human rights and freedoms.
Second condition: The conduct is carried out because that person took such action.
Third condition: The conduct is carried out by, or at the instigation or with the consent or acquiescence of, a public official or someone acting in an official capacity, in the performance (or purported performance) of official duties.
Conduct is connected with such abuse if it involves acting as an agent, directing or sponsoring related activities, profiting from them, or materially assisting them. This includes providing goods, services, financial, or technological support.
Section 242 – “Property Obtained Through Unlawful Conduct”
A person obtains property through unlawful conduct (their own or another’s) if they acquire it by or in return for that conduct.
In determining whether property was obtained through unlawful conduct:
It does not matter whether money, goods, or services were provided to put the person in a position to carry out the conduct
It is not necessary to prove the conduct was of a particular kind if it can be shown that it was one of several kinds, each amounting to unlawful conduct
Conclusion
The opening provisions of Part 5 of POCA 2002 establish the foundation for civil recovery and forfeiture. They define the scope of unlawful conduct, including serious human rights abuses, and clarify when property is considered obtained through such conduct. These sections underpin the High Court’s and magistrates’ courts’ powers to recover and forfeit assets without the need for a criminal conviction.
