Correspondence

Circular 004/2018: unlawful conduct: gross human rights abuses or violations

Published 1 February 2018

1. Introduction

This guidance is issued to raise awareness and a basic understanding of the amendment made to the Proceeds of Crime Act 2002 (POCA) to provide for the recovery of the proceeds of gross human rights abuses or violations. The legislation also provides a full definition and description of terms used and the relevant procedures that may be referred to below.

2. Description of powers

Since 2003, Chapter 2 of Part 5 of POCA has made provision for civil recovery, which is a civil procedure in the High Court (Court of Session in Scotland) to recover the proceeds of crime. It provides for the recovery of property obtained through “unlawful conduct”. “Unlawful conduct” is defined in section 241 of POCA as conduct which is unlawful under the criminal law in the part of the UK where it occurred or, if it occurs in another country, is contrary to the criminal law of that country and would be unlawful under the criminal law of a part of the UK (if it occurred in that part).

Section 13 of the Criminal Finances Act 2017 expands the definition of ‘unlawful conduct’ to include:

• conduct which occurs in a country or territory outside the UK
• that constitutes (or is connected with) the commission of a gross human rights abuse or violation; and
• if it occurred in a part of the UK, would be unlawful under the criminal law of that part.

This removes the requirement for dual criminality in these cases.

“Gross human rights abuse or violation” means conduct which constitutes the torture, or cruel, inhuman or degrading treatment or punishment, of a person on the grounds that that person has sought to obtain, exercise, defend or promote human rights, or has sought to expose illegal activity by a public official. The conduct must be carried out in consequence of the person having sought to do these things. It must be carried out by a public official or a person acting in a public capacity in performance or purported performance of their official duties. Alternatively, it may be committed by another person acting with the consent or acquiescence of a public official or a person acting in an official capacity, where such consent or acquiescence occurred in the performance or purported performance of official duties.

This definition applies regardless of whether such conduct is contrary to the criminal law of the country in which it occurred.

As a result of this amendment, any property obtained through gross human rights abuses or violations can be subject to the existing civil recovery powers within Part 5 of POCA, note that this includes the powers to forfeit cash, listed items of personal property and bank and building society accounts in Chapters 3 to 3B.

The ability to pursue civil recovery in the High Court under Chapter 2 of Part 5 is limited to those agencies defined as an “enforcement authority”, namely, in England and Wales;

• the National Crime Agency,
• HM Revenue and Customs,
• the Financial Conduct Authority,
• the Serious Fraud Office, or
• the Crown Prosecution Service)

The specific mandates of these authorities is provided in an annex to this circular. These mandates will inform them as to the types of cases in which they may seek a civil recovery order.

In Scotland, the powers are limited to the Scottish Ministers (through the Crown Office).

The amendment to the definition of unlawful conduct is not to be commenced in Northern Ireland at the present time.

3. Points of interest

This is an amendment to the definition of the type of conduct which can engage existing civil recovery provisions in POCA. It is not a new bespoke power, a list or sanctions regime.

Civil recovery powers in the High Court (Court of Session in Scotland) are only available to the enforcement authorities listed above, and the forfeiture powers in Chapters 3 to 3B are only available to the officers listed in those chapters. The amendment does not therefore confer any new powers on public individuals or bodies, or the wider law enforcement and prosecution community.

Law enforcement agencies and prosecution agencies who do not have direct access to the powers can consider referring a suitable case to an enforcement authority. The enforcement authority can then determine whether or not an application should be made.