Enforcement and prosecution agencies are making increasing use of their civil recovery powers. Those facing such action must seek advice from those who know about this demanding area of law.
Civil recovery is a High Court civil action – as opposed to a criminal action - brought under Part 5 of the Proceeds of Crime Act, where the authorities seek to seize the assets of a company or an individual that they believe to be the proceeds of crime.
It is increasingly popular with enforcement and prosecution agencies. This is due to legislation introduced in the last two decades that has given the authorities new ways in which to target assets and because there does not even have to be a criminal charge or conviction for the assets to be seized.
Civil recovery proceedings can be brought by UK authorities against assets anywhere in the world if the assets are under UK jurisdiction. Cases have established that civil recovery can be an alternative if a case is not thought suitable for prosecution and that such proceedings can be brought against a corporate or individual that had no direct involvement in wrongdoing but benefited from it.
Any individual or organisation facing such action has only one realistic course of action: seeking advice from those with expertise in this challenging and highly-specialised area of law.
As a firm that was the first to take civil recovery cases to the likes of the European Court of Human Rights and the Supreme Court, we have received the highest ranking in national and international legal guides. We have been contesting POCA cases since the days when the Assets Recovery Agency and then the Serious Organised Crime Agency were bringing civil recovery actions under POCA. Their successor, the National Crime Agency (NCA), is just one of a number of authorities, including the Serious Fraud Office (SFO) and Financial Conduct Authority (FCA), which can use civil recovery to target assets.
Chambers and Partners, one of the most prestigious international legal guides, recognises Rahman Ravelli as one of the elite firms in this specialised, demanding area of law. It names our solicitors as being among the very best in the UK when it comes to acting intelligently and forcefully to defend our clients’ assets in the face of POCA actions.
It was the Proceeds of Crime Act 2002 (POCA) that removed the need for there to be a conviction in order for the authorities to confiscate assets that they believed were obtained through illegal activity. POCA, particularly Part 5 of the Act, allows the authorities to use civil recovery powers to take the assets simply by showing that on the balance of probabilities those assets are the proceeds of crime.
The Criminal Finances Act 2017 introduced unexplained wealth orders (UWOs), which we explain in detail elsewhere and account freezing orders.
A UWO enables the authorities to compel a respondent to explain how they acquired assets. If the respondent cannot give what is considered to be an adequate explanation for how they came to obtain the assets legally then the assets can be considered recoverable property and proceedings can be initiated for them to be seized under POCA. The account freezing order process gives agencies the ability to freeze bank and building society accounts that are suspected of holding wealth that has a link to criminality.
Both are, as yet, new and little-used weapons. But they are starting to be used - and are just the latest indicator of how civil recovery can be used to target assets.
Specialist Areas of Practice: International Regulation and Corporate Crime, Fraud and Business Crime, Civil Fraud, Corporate Investigations
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The Chambers UK Guide