Commentary on Sections Part 5: Civil Recovery of the Proceeds etc. of Unlawful Conduct Chapter 1: Introductory Section 240: General purpose of this Part
287.Subsection (1) explains that this Part of the Act has two purposes. One is to enable the enforcement authority to bring civil proceedings in the High Court or Court of Session to recover property that is or represents property obtained through unlawful conduct (civil recovery). This is an entirely new right of action, and is reserved to the enforcement authority. The civil recovery scheme is set out insections 243 to 288. Section 316(1) explains that the enforcement authority means the Director of the ARA, except in Scotland where it means the Scottish Ministers. Except as specifically provided by the sections, court proceedings in the High Court will be governed in the usual way in England and Wales by the Civil Procedure Rules or in Northern Ireland by similar rules of court referred to as Rules of the Supreme Court; and in the Court of Session in Scotland by Petition Rules.
288.The second purpose of Part 5 is to enable cash which is or represents property obtained through unlawful conduct, or is intended to be used in such conduct, to be forfeited in civil proceedings before a magistrates’ court or (in Scotland) the sheriff (cash forfeiture). This power replaces, with an extended scheme, the existing provision, in Part II of the 1994 Drug Trafficking Act, for the forfeiture of cash discovered on export or import which is suspected to be derived from or intended for use in drug trafficking. The cash forfeiture scheme is set out in sections 289 to 303.
289.The key components introduced in this section are individually explained in later sections. The meaning of ‘property’ is explained in section 316(4); ‘unlawful conduct’ at section 241; ‘property obtained through unlawful conduct’ in section 242; and ‘recoverable property’ at sections 304 to 310.
290.Subsection (2) makes clear that civil recovery and cash forfeiture proceedings may be brought whether or not proceedings have been brought for an offence in connection with the property. Cases where criminal proceedings have not been brought would include cases where there are insufficient grounds for prosecution, or where the person suspected of the offence is outside the jurisdiction or has died. Cases where criminal proceedings have been brought may include cases where a defendant has been acquitted, or where a conviction did not result in a confiscation order. However, section 308 makes clear that property is not recoverable if it has been taken into account in deciding the amount to be paid under a confiscation order.