Commentary on Sections Part 5: Civil Recovery of the Proceeds etc. of Unlawful Conduct Chapter 1: Introductory Section 241: "Unlawful conduct"
291.Subsection (1) defines conduct occurring in the UK as unlawful if it is unlawful under the criminal law of the part of the UK in which it occurred.
292.Subsection (2) extends the definition of ‘unlawful conduct’ to include conduct which occurs outside the United Kingdom and is unlawful under the criminal law of that country, and would be unlawful if it occurred in any part of the United Kingdom. The effect of this provision is to enable property which has been obtained through conduct abroad to be recovered, or cash which has been so obtained to be forfeited, if the conduct was unlawful where it took place and would be unlawful in at least one part of the United Kingdom; and to enable cash which is intended for use abroad to be forfeited if the conduct for which it is intended would be unlawful both in at least one part of the United Kingdom and in the country where it was intended to occur.
293.Subsection (3) makes clear that the test the court or sheriff must use in determining whether matters alleged to constitute unlawful conduct have occurred or whether any person intended to use cash for unlawful conduct is the balance of probabilities. That is the normal standard of proof applicable in civil proceedings. The criminal standard of proof, under which matters must be proved beyond reasonable doubt, does not therefore apply in civil recovery or cash forfeiture proceedings.