Commentary on Sections Part 5: Civil Recovery of the Proceeds etc. of Unlawful Conduct Chapter 4: General.Recoverable property Section 304: Property obtained through unlawful conduct
420.Sections 304 to 316 apply to both civil recovery and cash forfeiture. Section 304 defines when property is recoverable, and how the original property may be followed when it is disposed of by the person who originally obtained it or a person who subsequently obtained it. Under subsection (1), property that is obtained through unlawful conduct is recoverable property; as such, it may be recovered by the enforcement authority. But the enforcement authority will not always be able to recover the property from the person who obtained the property through unlawful conduct. The property may, for example, have been sold; or the person may be untraceable, or dead. Subsections (2) and (3) therefore provide that where the property has been disposed of or passed to someone else, it may be ‘followed’ by the enforcement authority and recovered from that person. If the person to whom the property has been passed then in turn passes it on, the enforcement authority will be able to follow the property along the chain of transactions.
421.The ability to ‘follow’ property is, however, limited in several ways. Recovery depends on the original property continuing to be identifiable as such. And if any of the transactions in question is of the sort set out at section 308, the chain will be broken and the enforcement authority will no longer be able to follow and recover the property.