Serious Organised Crime Agency v Olden

Relevant evidence is generally admissible in civil proceedings, even if obtained unlawfully. The court retains a discretionary power to exclude it where admission would compromise the integrity of the judicial process or make the proceedings unfair. That discretion requires a fact-sensitive balance between considering relevant evidence and avoiding disproportionate interference with individual rights.

Part 5 of the Proceeds of Crime Act 2002 permits civil recovery despite an acquittal or the absence of criminal proceedings. Property obtained through mortgage fraud, property acquired with such proceeds, rental profits and sale proceeds may all be recoverable. A remortgage or sham transfer between aliases does not avoid recovery. Lack of lawful income is relevant but cannot, by itself, prove a civil recovery claim.

The Serious Organised Crime Agency applied under Part 5 of the Proceeds of Crime Act 2002 for recovery orders concerning properties, bank balances, a caravan, a car and sale proceeds. The assets were said to represent proceeds of mortgage fraud and other deceptions carried out through false identities.

The respondent had previously been convicted of related offences, but the convictions were quashed by the Court of Appeal (Criminal Division) because the arresting officer lacked the necessary personal suspicion. The civil proceedings raised questions about the admissibility of evidence obtained after the unlawful arrest, the proof and tracing of unlawful proceeds, and whether the assets were recoverable property.

1. Admissibility. The general rule is that relevant evidence is admissible regardless of how it was obtained. In civil proceedings the court may nevertheless exclude otherwise admissible evidence under CPR rule 32.1(2), where admission would dishonour the administration of justice, compromise the integrity of the judicial process, or make the trial unfair under Article 6 of the ECHR.
2. The discretion is fact-sensitive. Relevant considerations include the nature and seriousness of the unlawfulness, whether the evidence could have been obtained lawfully, the importance of the evidence, and the need to avoid disproportionate interference with individual rights. There are no automatic rules requiring exclusion merely because evidence was excluded in criminal proceedings. SOCA was independent of the police and prosecution, and the evidence was admissible in the civil claim.
3. Statutory recovery. The statutory scheme permits civil recovery whether or not criminal proceedings have been brought, and whether or not they resulted in conviction. The court must make a recovery order if satisfied on the balance of probabilities that property is recoverable.
4. The respondent had obtained mortgage advances by deception. The false identities, false employment details, false income, concealed bankruptcy and fabricated supporting documents were material to the lending decisions. Evidence from the actual decision-maker was unnecessary where the lender’s policies and procedures were proved by sufficient oral and documentary evidence.
5. The mortgage advances, deposits and subsequent transactions formed a connected chain of recoverable property. Property bought partly with fraudulently obtained mortgage money and partly with tainted funds was recoverable. Rental income, sale proceeds and property acquired through remortgaging or sham sales between aliases represented the original unlawful property. The same principle applied to the caravan and vehicles. The use of an overdraft did not prevent recovery where it was repaid with tainted money.
6. Lack of lawful income was a relevant factor in the overall evidential picture, but could not alone establish civil recovery. Here, the evidence and adverse findings about the respondent’s credibility proved the unlawful conduct and the recoverable character of all the assets. SOCA succeeded and was entitled to recovery orders in respect of all assets claimed.

The respondent had been convicted in the Crown Court of Newport. The Court of Appeal (Criminal Division) subsequently quashed the convictions because the arrest was unlawful. In these civil proceedings, the High Court held that the evidence remained admissible and granted recovery orders.