One of the two main schemes created by the Proceeds of Crime Act 2002 is civil recovery – the process by which the state, in the form of the Civil Recovery Unit (CRU), can apply to the civil courts for an order to ‘recover’ property said to have been acquired through criminal conduct.
It is for the CRU to prove that the property is recoverable – that it was acquired through criminality. While that requires the CRU to set out the crime that produced the property, the process does not amount to criminal prosecution. Nobody is ‘found guilty’, and no sentence is passed. Instead, the court simply has to find that criminal conduct took place and led to the property being acquired. It doesn’t necessarily matter who committed the crime. The case proceeds through the civil courts, with the civil standard of proof (balance of probabilities, rather than beyond reasonable doubt) and rules of evidence (no need for corroboration, hearsay allowed, and so on). It is these lower hurdles that can allow civil recovery to take place where there is no prosecution.
The implications of civil recovery can be profound. Substantial assets – often, but not always, houses – can be lost. Cases are heard in public, and can often attract press coverage. Investigations can lead to credit blacklisting, and banks refusing to deal with those affected.
Recovery order applications usually follow preliminary steps by the CRU. The Act contains a range of investigative measures. Disclosure orders give the CRU the power to compel individuals to provide information relating to property; it is a crime to fail to respond, or to give false information. Prohibitory property orders have the effect of ‘freezing’ property, preventing it from being sold (or otherwise dealt with) until the case is resolved. Other orders are designed to tackle specific issues.
It is essential that anyone who finds themselves involved in such proceedings has strong and effective representation. While the powers contained in the Act are far reaching, there are balancing provisions – the courts have the power to recall any orders if appropriate, and will do so where there is a clear basis. Any orders have to be proportionate and consistent with the human rights of the individuals affected.
Livingstone Brown has extensive experience of dealing with civil recovery cases. We have acted for clients seeking recall of disclosure orders and prohibitory property orders, as well as those defending recovery order applications on the merits. We’ve dealt with simple cases that have been sorted out quickly, and those which have required lengthy proofs (trials) to be fixed. We have a strong understanding of the legislation and the decisions of the courts – both in Scotland and elsewhere in the UK. We have good relationships with experienced counsel, and are ideally placed to act swiftly and decisively.
As Scottish lawyers, Livingstone Brown helps clients who come into contact with the Scottish criminal justice system. The firm conducts cases across the country, but its clients come from all parts of the UK and beyond.
Livingstone Brown is a leading firm of Scottish solicitors. Based in Glasgow, but dealing with cases around the country, the firm has been at the forefront of legal service provision for over thirty years.
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