Commentary on Sections Part 5: Civil Recovery of the Proceeds etc. of Unlawful Conduct Chapter 4: General.Recoverable property Section 305: Tracing property, etc.
422.Sections 305 and 306 allow the enforcement authority to recover property which has not itself been obtained through unlawful conduct but which ‘represents’ such property.
423.Section 305 establishes the principle of tracing the original recoverable property if it is disposed of. Under subsection (1), property which represents property which is or has been recoverable, is also recoverable.
424.Under subsection (2), where a person disposes of either the original recoverable property or representative property, and receives property in return, the property he receives in return becomes representative property and will also be recoverable. For example, if a stolen car is sold, the proceeds of sale will ‘represent’ the original property and the enforcement authority will be able to ‘trace’ into those proceeds and recover them. And if the proceeds of drug dealing are spent on jewellery, the jewellery itself will represent the original proceeds, and the enforcement authority will be able to recover it.
425.Like ‘following’ under section 304, ‘tracing’ is capable of being pursued along a chain of transactions. Under subsection (3), where representative property is disposed of, it may be followed into the hands of the person who obtains it; it continues to represent the original property, and is therefore recoverable.
426.Tracing and following may multiply indefinitely the items of property that are rendered potentially recoverable. However, the enforcement authority will not be able to multiply its total recovery accordingly; limitations on total recovery are placed by section 278.