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(C) CIVIL RECOVERY ORDER

Part V of the Proceeds of Crime Act 2002 also enables certain state officials, such as constables, customs officers and the director of the Asset Recovery Agency, to apply to the High Court for a civil recovery order to recover property obtained through the commission of criminal conduct, even though the defendant may not been convicted of a crime in respect of that property and may simply be the recipient of property which is the product of a crime.[1] It is not necessary for anybody to have been convicted of a crime for this civil process to be engaged.[2] The process is concerned with confiscation of property rather than the value of property. It is not possible to make a civil recovery order against property which is not located in the United Kingdom.[3] Significantly, it is possible for the victim of a crime, such as theft or fraud, to apply to the court for a declaration that property which might otherwise be recovered by the State as the proceeds of crime, was property or represents property of which the victim was deprived by unlawful conduct.[4] This constitutes an important mechanism for the victims of crime to obtain restitution of property obtained by the defendant as a result of the commission of crime.[5]

(D) COMMON LAW CLAIMS FOR RESTITUTION

It was recognized by the Court of Appeal in Attorney-General v Blake[6] that the Attorney-General, as the guardian of the public interest, could bring a public law civil claim to ensure that criminals were prevented from receiving the proceeds of the crime.[7] The House of Lords rejected this public law ground of recovery. Lord Nicholls recognized that an order depriving the claimant of the proceeds of crime and transferring it to the State involved the confiscation of property without compensation,[8] and the courts have no power to make such an order at common law.137

  • [1] See Serious Organised Crime Agency v Perry [2012] UKSC 35, [2013] 1 AC 182, [39].
  • [2] For the due process implications of this procedure see C King, ‘Civil Forfeiture and Article 6 of theECHR: Due Process Implications for England and Wales and Ireland’ (2014) LS 371.
  • [3] Serious Organised Crime Agency v Perry [2012] UKSC 35, [2013] 1 AC 182, [39].
  • [4] Proceeds of Crime Act 2002, s 281.
  • [5] See The National Crime Agency v Robb [2014] EWHC 4384 (Ch) for an illustration of the victims offraud obtaining restitution of the property of which they had been defrauded by virtue of s 281.
  • [6] [1998] Ch 439. 135 See p 543, below. 136 Attorney-General v Blake [2001] 1 AC 268, 289.
  • [7] 137 See Malone v Commissioner of Police of the Metropolis [1980] QB 49; Webb v Chief Constable of
  • [8] Merseyside Police [2000] All ER 209.
 
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