Civil Restraint / Confiscation Proceedings

Even where there has been no criminal prosecution, the state (in the form of the Civil Recovery Unit (‘CRU’) - an agency of the Scottish Government that is closely connected to Crown Office and Procurator Fiscal Service) can still make an application to ‘recover’ property obtained by criminal conduct.

Such applications are made to the civil courts, and the civil rules of evidence apply. While the CRU still has to prove the property came from, or was intended to be used for the purposes of, criminality, it doesn’t have to do so by corroborated evidence, or to prove the matter beyond reasonable doubt. It simply has to satisfy the court on the lower, civil, standard of balance of probabilities. Importantly, it is not essential to prove who committed the crime – it is enough to show the link between the property or assets in question and criminality.

The relevant legislation is highly technical, and because relatively few Scottish cases have made it to the appeal courts, there has been little in way of judicial interpretation. It should not be assumed, however, that the state’s interpretation of the provisions will be the correct one.

The consequences of civil restraint/confiscation proceedings can be significant – bank accounts can be frozen, money seized, or assets sold. It is imperative, therefore, that you seek legal advice and representation where such recovery is disputed.

Notable case 

A notable case concerning criminal confiscation is the UK Supreme Court’s decision in R v. Waya [2012] UKSC 51. That was an appeal against a confiscation order made following a criminal conviction in the English courts. There was much discussion about how the benefit from the crime should be calculated, and hence how much should be confiscated. The trial judge, the Court of Appeal and the Supreme Court all came to different conclusions; the Supreme Court itself did not manage to reach a unanimous view. What was clear, however, was that the legislation needed to be interpreted in a way that respected the human rights of the accused, including the right not to have property arbitrarily removed. Any interference had to be proportionate. The decision had a major impact on the calculation of confiscation orders in criminal cases.  However, while it expressly considered the part of the Proceeds of Crime Act 2002 which deal with criminal prosecutions, it is at least arguable that it also has an application to civil recovery cases.

Contact our Specialist Litigation Team

Our Specialist Litigation Team has dealt with many civil recovery cases where there is a dispute over whether the property came from, or was intended for use in, criminal conduct; account freezing and restraint orders; applications to vary or exclude property; challenges to disclosure orders; and many more besides. Contact us on 0141 429 8166 or complete our online enquiry form.