These are directed against the asset itself – an order “in rem” and therefore
do not require a conviction before they can be instituted.
Civil recovery powers initially exercised by the now abolished Asset Recovery
Agency have been devolved by the Serious Crime Act 2007 (s74) to SOCA
and the prosecuting authorities.
This enables us to adopt a seamless approach to recovering criminal
proceeds. If we are unable to proceed by way of criminal confiscation, we can
consider proceeding against the assets by way of civil proceedings. There is
no requirement for an underlying criminal conviction and proceedings may be
brought even where there has been an acquittal. The respondent will be the
holder of the property who may or may not have acted unlawfully, for instance
the executor of the estate of a deceased defendant where we have been
unable to continue with criminal confiscation proceedings but can seek to
pursue the assets by way of civil recovery.
The legislation enables us to recover property which is or represents property
that has been obtained through unlawful conduct. The unlawful conduct
may have occurred outside the United Kingdom provided the conduct is
unlawful both under the criminal law of the country where it took place and the
UK.
Pending the making of a Recovery Order by the court, the prosecution can
apply for an Interim Receiving Order to preserve the property and appoint an
interim receiver. The interim receiver is given powers to obtain information or
require a person to answer questions; power of entry to search for, inspect,
copy or remove for evidence anything described in the order and power to
manage the property including power of sale of a diminishing asset.