Part 5 of the Proceeds of Crime Act 2002 (POCA) is the civil part of that Act – it is in Part 5 that you will find cash Forfeiture Orders, and now Unexplained Wealth Orders and Account Freezing Orders – Part 5 is growing! But right from the beginning, the Act included Civil Recovery Orders (CROs).
CROs vest property in a trustee – in practice that is invariably someone working for the National Crime Agency; the lead agency for taking out POCA civil recovery claims. The NCA bring a civil recovery claim in the High Court and the target is property – that property must have been obtained through unlawful conduct as defined in the Act. The litigation usually starts with the NCA securing, without notice, a Property Freezing Order (PFO) freezing the assets that may become the subject of a final order. The end result is often what is in effect, a criminal trial in the High Court, with the defendants facing allegations that they probably were involved in drug trafficking, corruption, mortgage fraud and so on.
This article is aimed at the lawyers who defend in such cases. How are such cases funded? The answer is easy – privately. At first civil legal aid was available for these cases but the LAA simply did not properly engage and the rates were so poor and the mechanics so cumbersome that eventually a scheme was introduced to permit access to the funds frozen by the PFO to those defending in such cases. However, the whole area of funding has become something of a specialism in itself.