Serious Organised Crime Agency v Bosworth & Anor

A recovery order under the Proceeds of Crime Act 2002 is not a confiscation of unexplained wealth. The claimant must prove, on the balance of probabilities, both unlawful conduct and a link between that conduct and the particular property claimed. It is unnecessary to identify a specific criminal offence, provided the particular kind or kinds of unlawful conduct are identified. A respondent’s lack of identifiable lawful income, or inability to explain the source of funds, cannot alone establish recoverability. The civil standard of proof remains single and unvarying, although serious allegations and grave consequences may require especially careful examination of the evidence.

The claimant sought recovery orders under section 266 of the Proceeds of Crime Act 2002 over properties, bank funds and cash allegedly acquired through unlawful conduct by David Bosworth. The alleged conduct included handling stolen goods and fraudulent evasion of tobacco duty. A later proposed case based on tax evasion was refused permission to be added during the trial. No unlawful conduct was alleged against Dawn Walker personally; her assets were said to derive from Mr Bosworth’s conduct.

The central issues were whether SOCA had identified and proved unlawful conduct, whether the particular assets were obtained through or represented property obtained through that conduct, and whether unexplained or inconsistently explained sources of funds were sufficient.

1. The claim was dismissed. Under section 266 of the Proceeds of Crime Act 2002, a recovery order is mandatory only where the court is satisfied that the particular property is recoverable. The legislation does not create a confiscatory jurisdiction over a person’s assets merely because lawful acquisition has not been demonstrated.
2. Property is recoverable only if it was obtained through unlawful conduct, or represents or can be followed from such property. The claimant must therefore prove both unlawful conduct and a link between that conduct and the identified property. It is unnecessary to allege a specific criminal offence, but the matters said to constitute the particular kind or kinds of unlawful conduct must be set out. The approach in R (Director of Assets Recovery Agency) v Green [2005] EWHC 3168 (Admin) was adopted, consistently with Olupitan v Director of the Assets Recovery Agency [2008] Lloyd’s Rep FC 253.
3. The balance of probabilities is a single, unvarying standard. Serious allegations and potentially catastrophic consequences may require more anxious and careful examination of the evidence, but do not create a heightened legal standard of proof. The approach stated in In re D [2008] 1 WLR 1499 was applied.
4. The claimant failed to prove that Mr Bosworth had handled stolen goods or fraudulently evaded tobacco duty. His acquittal on the handling charges was relevant and could not simply be disregarded. The abandonment of the tobacco prosecution was also relevant, particularly since its explanation was not disclosed. Circumstantial evidence did not overcome the weaknesses created by those matters.
5. The proposed tax-evasion case was not properly pleaded and was refused permission to be added at trial. In any event, retaining money which ought to have been paid in tax does not, without more, establish that identified property was obtained through unlawful conduct. The reasoning in The Director of the Assets Recovery Agency v Lovell [2009] NICA 27 was treated as difficult to understand and was not accepted.
6. An inability to give a convincing account of the source of funds may be relevant to the factual inference, but it does not require an inference of unlawful acquisition in every case. The evidence concerning the respondents’ assets did not establish the necessary statutory link.