Civil Recovery Solicitor
If you or someone you know is subject to Civil Asset Recovery proceedings under the Proceeds of Crime Act (POCA), Restraint Orders or Confiscation Proceedings, contact the specialist criminal defence lawyers at Qamar Solicitors urgently.
We have a wealth of experience representing and defending clients facing civil asset recover and other POCA proceedings: contact us as early as possible for urgent advice on the best way forward.
What is civil recovery?
Prosecutors and investigators have civil asset recovery powers under section 2 POCA where proceeds of crime have been identified but it is not feasible to secure a conviction (or a conviction has been secured but no confiscation order has been made). The authorities who have these powers include the National Crime Agency (NCA), the Serious Fraud Office (SFO), HM Revenue and Customs (HMRC) and the Crown Prosecution Service (CPS).
They can commence civil asset recovery proceedings in the High Court requesting an order to take back property, money or other assets they ‘think’ have been obtained illegally. Civil asset recovery powers are non conviction-based but are not allowed to be used as a means to allow individuals or corporate bodies to avoid criminal investigations and prosecution by consenting to a civil recovery order. However, there is nothing to stop an authority from seeking a civil order where a defendant has been acquitted in the criminal courts.
The powers may also be used where a relevant authority believes the public interest will be better served by using those powers rather than through seeking a criminal conviction. Unlike restraint orders, civil recovery proceedings are against the property itself and not the individual or company.
The court must be satisfied on the balance of probabilities that the property or assets is more likely that not to be the proceeds of unlawful conduct, for instance, drug trafficking, fraud or bribery.
Civil Recovery Orders in the Magistrates’ Court
In some instances, for example where an individual is arrested on suspicion of drug trafficking and/or money laundering, a warrant will have been executed by the police at the individual’s address(s). Subsequently the police may have seized money or property which they believe is the proceeds of crime.
However, the police and prosecuting authorities may not have sufficient evidence to bring criminal charges. The police then has two choices:
- They must return all the property to the individual, or
- Apply to the Magistrates’ Court for forfeiture of the seized property under POCA
Where a POCA application is made, the police must give notice to the individual who (along with any third parties that may have rights over the monies/assets) will be given an opportunity to satisfy the Court on a balance of probabilities that the asset(s) are not the proceeds of crime.
If the individual (or any third party) is successful, the assets will be returned. If they are not successful, the assets will be forfeited.
Where money has been seized, ‘cash forfeiture’ is a simple, efficient procedure in the Magistrates’ Court for recovering seized criminal cash. It does not require a conviction – and anyone wishing to contest the forfeiture must prove to the court that the cash came from a legitimate source.
It is important to know that if you knowingly have possession of criminal property including cash, you have committed a money laundering offence. This means a cash seizure may result in a criminal investigation and prosecution, and possible confiscation proceedings – which could involve a much large sum of money than the amount originally forfeited.
Cross border issues
Civil asset recovery and proceeds of crime increasingly transcend UK borders and the authorities may try to recover money and assets held abroad. It is important to secure legal representation from solicitors who work with foreign lawyers and investigators, forensic accountants and other professionals to give you the best chance of defending proceedings, for instance, negotiating with the authority concerned.
How can we help with Civil Recovery?
We have years of experience in representing clients facing proceedings under POCA and it is vital to consult the best solicitors you can as early as possible. Contact the criminal defence lawyers at Qamar Solicitors immediately for urgent specialist legal advice on civil asset recovery proceedings.