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A drafting enigma

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17 August 2012 / Daniel Lightman KC
Issue: 7527 / Categories: Features , Criminal
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Daniel Lightman unravels the puzzles within the Proceeds of Crime Act 2002

A key innovation introduced by the Proceeds of Crime Act 2002 (POCA 2002) is the power it gave to enforcement agencies, including the Serious and Organised Crime Agency (SOCA), to conduct civil recovery investigations and then to apply for civil recovery orders (CROs) in respect of property which is, or represents, property obtained through unlawful conduct. Ten years after their introduction, the Supreme Court has recently, for the first time, considered the extra-territorial ambit of civil recovery investigative powers and CROs.

Misnomers

The use of the expression “recovery order” is inapposite, since it wrongly suggests that the property at one time belonged to SOCA and that the function of a CRO is to “restore” the property to SOCA, whereas a CRO is in reality a civil forfeiture. When a CRO is made, its proceeds do not go to the victims of the crime, but rather to the UK Exchequer—and the Home Office has a discretion to incentivise SOCA by providing

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