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Introduction
The Proceeds of Crime Act 2002[1] introduced the possibility of civil recovery proceedings in the United Kingdom against criminally derived assets. Such proceedings may be taken only by the Director of the Assets Recovery Agency in England, Wales and Northern Ireland, or by the Civil Recovery Unit on behalf of Scottish Ministers in Scotland. Such proceedings have now been available for three years and this paper examines the experience so far, firstly in respect of the categories of case where civil recovery proceedings have been instituted and, secondly, in respect of the legal issues which have been raised.
Categories of cases dealt with
There are six categories of circumstances where the Agency has initiated civil recovery proceedings.
Deceased defendants
When an individual dies they are beyond criminal prosecution. However, this does not mean that the proceeds of crime are beyond recovery. The Agency has instituted civil recovery action in a number of Northern Ireland cases where the property holder has met a violent death.
Assets Recovery Agency v. Johnston
Jim Johnston was shot dead outside his Crawfordsburn home in May 2003 during a loyalist feud. The case was referred to the Agency by the Police Service of Northern Ireland in the suspicion that Johnston's assets had been gained through unlawful activity. After initial investigations, the Agency searched a number of properties including Johnston's home where they discovered a partially assembled bomb and some ammunition. In September 2003 the High Court was satisfied that the evidence was sufficient to freeze Johnston's assets, appointing an Interim Receiver who took possession of them and who was tasked to carry out an independent investigation on behalf of the Court. The receiver's report concluded that all of the property in Johnston's estate was the proceeds of unlawful conduct and was therefore "recoverable" under the Act. In September 2004, following discussions between the Agency and the representatives of Johnston's estate, the Court granted a recovery order by consent under which assets valued at approximately £1.25m were forfeited. This included Johnston's home, together with a further seven houses in Northern Ireland, a holiday home in Ireland and a set of commercial premises in Belfast. A significant investment portfolio was also forfeited. In November 2004, Johnston's home was sold by public auction...