Part 5Civil recovery of the proceeds etc. of unlawful conduct
C1Chapter 2Civil recovery in the High Court or Court of Session
Vesting and realisation of recoverable property
I1278 Limit on recovery
1
This section applies if the enforcement authority seeks a recovery order—
a
in respect of both property which is or represents property obtained through unlawful conduct and related property, or
b
in respect of property which is or represents property obtained through unlawful conduct where such an order, or an order under section 276, has previously been made in respect of related property.
2
For the purposes of this section—
a
the original property means the property obtained through unlawful conduct,
b
the original property, and any items of property which represent the original property, are to be treated as related to each other.
3
The court is not to make a recovery order if it thinks that the enforcement authority’s right to recover the original property has been satisfied by a previous recovery order or order under section 276.
4
Subject to subsection (3), the court may act under subsection (5) if it thinks that—
a
a recovery order may be made in respect of two or more related items of recoverable property, but
b
the making of a recovery order in respect of both or all of them is not required in order to satisfy the enforcement authority’s right to recover the original property.
5
The court may in order to satisfy that right to the extent required make a recovery order in respect of—
a
only some of the related items of property, or
b
only a part of any of the related items of property,
or both.
6
Where the court may make a recovery order in respect of any property, this section does not prevent the recovery of any profits which have accrued in respect of the property.
F56A
If—
a
recoverable property is forfeited in pursuance of a forfeiture notice under section 297A F7or an account forfeiture notice under section 303Z9, and
b
the enforcement authority subsequently seeks a recovery order in respect of related property,
the F4notice is to be treated for the purposes of this section as if it were a recovery order obtained by the enforcement authority in respect of the forfeited property.
7
If—
a
b
the enforcement authority subsequently seeks a recovery order in respect of related property,
the order under F2that section is to be treated for the purposes of this section as if it were a recovery order obtained by the enforcement authority in respect of the forfeited property.
F37A
If—
a
an order is made under section 303Q instead of an order being made under section 303O for the forfeiture of recoverable property, and
b
the enforcement authority subsequently seeks a recovery order in respect of related property,
the order under section 303Q is to be treated for the purposes of this section as if it were a recovery order obtained by the enforcement authority in respect of the property that was the forfeitable property in relation to the order under section 303Q.
F97B
If—
a
an order is made under section 303Z44 instead of an order being made under section 303Z41 for the forfeiture of recoverable property, and
b
the enforcement authority subsequently seeks a recovery order in respect of related property,
the order under section 303Z44 is to be treated for the purposes of this section as if it were a recovery order obtained by the enforcement authority in respect of the property that was the forfeitable property in relation to the order under section 303Z44.
8
If—
a
in pursuance of a judgment in civil proceedings (whether in the United Kingdom or elsewhere), the claimant has obtained property from the defendant (“the judgment property”),
b
the claim was based on the defendant’s having obtained the judgment property or related property through unlawful conduct, and
c
the enforcement authority subsequently seeks a recovery order in respect of property which is related to the judgment property,
the judgment is to be treated for the purposes of this section as if it were a recovery order obtained by the enforcement authority in respect of the judgment property.
In relation to Scotland, “claimant” and “defendant” are to be read as “pursuer” and “defender”.
9
If—
a
property has been taken into account in deciding the amount of a person’s benefit from criminal conduct for the purpose of making a confiscation order, and
b
the enforcement authority subsequently seeks a recovery order in respect of related property,
the confiscation order is to be treated for the purposes of this section as if it were a recovery order obtained by the enforcement authority in respect of the property referred to in paragraph (a).
10
In subsection (9), a confiscation order means—
a
an order under section 6, 92 or 156, or
b
an order under a corresponding provision of an enactment mentioned in section 8(7)(a) to (g),
and, in relation to an order mentioned in paragraph (b), the reference to the amount of a person’s benefit from criminal conduct is to be read as a reference to the corresponding amount under the enactment in question.
Pt. 5 Ch. 2: power to modify conferred (25.4.2013) by Crime and Courts Act 2013 (c. 22), s. 61(11)(f), Sch. 25 para. 7