Section 48: Civil recovery of the proceeds etc of unlawful conduct, and Section 49: Investigations
61.Civil recovery under Part 5 of the POCA enables certain enforcement authorities to bring proceedings before the High Court or the Court of Session for the recovery of property which has been obtained through unlawful conduct, or property which represents property obtained through unlawful conduct. The value of the property must not be less than £10,000. The action is taken against property rather than an individual, and so does not require a criminal conviction. A civil recovery investigation is an investigation to identify property which is, or represents, the proceeds of unlawful conduct. An investigation, however, cannot be undertaken if proceedings for a recovery order have been started in respect of the property, an interim receiving order or interim administration order applies to the property or the property is detained under section 295 of the POCA (the provisions in relation to detained cash).
62.The UK Supreme Court’s judgment in the case of Perry v SOCA [2012] UKSC 35 effectively meant that orders made under Chapter 2 of Part 5 of the POCA did not extend to property outside the jurisdiction of the court, and that disclosure orders could not be made against persons who were not within the jurisdiction of the court. The Supreme Court also cast doubt on whether a disclosure order made under Part 8 of the POCA could go beyond property already known, although these comments were not a formal part of the judgment. The original policy intention behind the POCA was always that orders made under Chapter 2 of Part 5 of the POCA should reach beyond the jurisdiction of the court, as the proceeds of unlawful conduct are rarely held in one country and are often placed in jurisdictions where recovery is difficult. However, it was intended that the courts should only deal with cases which had some connection to the United Kingdom. Section 48 and 49, and accompanying Schedules 18, 19 and 25 seek to put this intention beyond doubt.
