Supreme Court allows civil recovery of proceeds of unlawful conduct
Enforcement agencies can apply the civil burden of proof when pursuing action to recover the proceeds of crime, the Supreme Court ruled last week.
In Gale & Ors v SOCA [2011] UKSC 49, the Serious Organised Crime Agency (SOCA) successfully argued it could bring a civil recovery order for £2m worth of property against David Gale and his former wife Teresa, despite the fact both had been acquitted.
SOCA said the property was derived from criminal activity in the form of drug trafficking, money laundering and tax evasion.
The Gales argued that the unlawful conduct had to be proved beyond reasonable doubt rather than on the basis of balance of probabilities or their Art 6 right to a fair trial would be breached.
Mr Gale was acquitted of drugs trafficking by a Portugese court in 2000. Mrs Gale was acquitted of money laundering in a separate trial.
However, the justices held there was not a sufficient “link” between the Portugese proceedings and the English civil proceedings, and therefore there was no reason why confiscation of the
Gales’ property should not be based on the civil standard of proof.
The case is likely to go to the European Court of Human Rights as Lord Phillips remarked that
an authoritative Grand Chamber decision from Strasbourg, clarifying and rationalising this “whole confusing area” of the court’s case law was required.
Aziz Rahman, partner at Rahman Ravelli, who acted for the Gales, says: “The Supreme Court found there was not a sufficiently strong ‘link’ between the civil proceedings and the criminal case for there to be an Art 6 breach.
“The justices said the case law on this area was confusing and would benefit from further consideration. They have effectively invited us to take the case to Strasbourg, and we will be going.”
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