Enforcement by means of civil recovery
In addition to the criminal jurisdiction in the UK to restrain and enforce external
orders there is also a jurisdiction to enforce external orders by means of civil
recovery. This is clearly a useful option where criminal proceedings have not
been instituted in the overseas territory and the external order is civil in
nature.
However, a civil recovery order is only available in respect of external orders
(as defined by section 447 POCA) where the court finds that the property
specified in the external order is “recoverable property” – meaning property
obtained as a result of or in connection with criminal conduct. This is the major
difference with regard to effecting criminal external orders. Furthermore, the
assistance in civil proceedings only relates to the enforcement of external
orders.
Unlike requests arising out of criminal proceedings, there is no power to
freeze assets to preserve them in anticipation of an external order which may
be made in the future. However, where an external order has already been
made and it is necessary to secure the detention, custody or preservation of
the property to which the external order applies it is possible to apply without
notice for a property freezing order and/ or an interim receiving order
appointing a receiver to manage and preserve the value of the recoverable
property.
If the court determines following the recovery proceedings that any property or
sum of money specified in the external order is recoverable property it must
make a recovery order vesting the recoverable property in the trustee for
civil recovery. The trustee is a suitably qualified insolvency practitioner
whose function is to realise the recoverable property.
When an external order is enforced in the UK, the proceeds, in accordance
with the international conventions, are disposed of according to domestic
law. In the UK the net proceeds are paid into the Recovered Assets
Incentivisation Fund and used to fund law enforcement initiatives and
community projects.