Proceeds of Crime Act 2002, section 240

General purpose of this Part

Part 5 Civil recovery of the proceeds etc. of unlawful conduct

(1)This Part has effect for the purposes of—

(a)enabling the enforcement authority to recover, in civil proceedings before the High Court or Court of Session, property which is, or represents, property obtained through unlawful conduct,

(b)enabling [F787propertyF787] which is, or represents, property obtained through unlawful conduct, or which is intended to be used in unlawful conduct, to be forfeited in civil proceedings before a magistrates’ court or (in Scotland) the sheriff [F788and, in certain circumstances, to be forfeited by the giving of a noticeF788] .

(2)The powers conferred by this Part are exercisable in relation to any property (including cash) whether or not any proceedings have been brought for an offence in connection with the property.

Definitions used in section 240 6

part

“part”, in relation to property, includes a portion,

Defined in s.316(1) · see it in the full Act
enforcement authority

“enforcement authority”—

(a)

in relation to England and Wales, means the Financial Conduct Authority, Her Majesty's Revenue and Customs, the National Crime Agency , the Director of Public Prosecutions ... or the Director of the Serious Fraud Office,

(b)

in relation to Scotland, means the Scottish Ministers,

(c)

in relation to Northern Ireland, means the Financial Conduct Authority, Her Majesty's Revenue and Customs, the National Crime Agency , the Director of the Serious Fraud Office or the Director of Public Prosecutions for Northern Ireland,

Defined in s.316(1) · see it in the full Act
the court

(10) In this section, sections 120 to 140 and Schedule 3 “the court” means—

(a)the Court of Session, where a trial diet or a diet fixed for the purposes of section 76 of the Procedure Act in proceedings for the offence or offences concerned is to be, is being or has been held in the High Court of Justiciary;

(b)the sheriff exercising his civil jurisdiction, where a diet referred to in paragraph (a) is to be, is being or has been held in the sheriff court.

Defined in s.119(10) · see it in the full Act

“the court” (except in sections 253(2) and (3) and 262(2) and (3) and Chapters 3, 3A , 3B, 3C, 3D, 3E and 3F ) means the High Court or (in relation to proceedings in Scotland) the Court of Session,

Defined in s.316(1) · see it in the full Act
property obtained through unlawful conduct

“property obtained through unlawful conduct” has the meaning given by section 242,

Defined in s.316(1) · see it in the full Act
unlawful conduct

“unlawful conduct” has the meaning given by section 241,

Defined in s.316(1) · see it in the full Act
cash

“cash” has the meaning given by section 289(6) or (7),

Defined in s.316(1) · see it in the full Act

Cases considering section 240 56

Perry and others v Serious Organised Crime Agency

[2012] UKSC 35 · 25 July 2012Interprets

Section 240 establishes Part 5 civil recovery as a remedy for property which is or represents property obtained through unlawful conduct. The court held that it does not itself extend recovery orders to foreign property, although it permits recovery of domestic property representing unlawful property obtained abroad (see paras [39]; [51]-[53]; [65]).

World Uyghur Congress, R (on the application of) v National Crime Agency

[2024] EWCA Civ 715 · 27 June 2024Defines

Section 240 was described as stating the purpose of Part 5: recovery in civil proceedings of property obtained through unlawful conduct, including where there has been no conviction (see para [40]).

Jones v Birmingham City Council

[2018] EWCA Civ 1189 · 23 May 2018

The court used the provision as an analogy: civil recovery may concern property obtained through unlawful conduct without becoming a criminal charge merely because criminal conduct must be proved. (see para [53])

36 more judgments, and what each says about section 240, are in the case-law panel in the full Act.

Explanatory note

287.Subsection (1) explains that this Part of the Act has two purposes. One is to enable the enforcement authority to bring civil proceedings in the High Court or Court of Session to recover property that is or represents property obtained through unlawful conduct (civil recovery). This is an entirely new right of action, and is reserved to the enforcement authority. The civil recovery scheme is set out insections 243 to 288. Section 316(1) explains that the enforcement authority means the Director of the ARA, except in Scotland where it means the Scottish Ministers. Except as specifically provided by the sections, court proceedings in the High Court will be governed in the usual way in England and Wales by the Civil Procedure Rules or in Northern Ireland by similar rules of court referred to as Rules of the Supreme Court; and in the Court of Session in Scotland by Petition Rules.

288.The second purpose of Part 5 is to enable cash which is or represents property obtained through unlawful conduct, or is intended to be used in such conduct, to be forfeited in civil proceedings before a magistrates’ court or (in Scotland) the sheriff (cash forfeiture). This power replaces, with an extended scheme, the existing provision, in Part II of the 1994 Drug Trafficking Act, for the forfeiture of cash discovered on export or import which is suspected to be derived from or intended for use in drug trafficking. The cash forfeiture scheme is set out in sections 289 to303.

289.The key components introduced in this section are individually explained in later sections. The meaning of ‘property’ is explained in section 316(4); ‘unlawful conduct’ at section 241; ‘property obtained through unlawful conduct’ in section 242; and ‘recoverable property’ at sections 304 to 310.

290.Subsection (2) makes clear that civil recovery and cash forfeiture proceedings may be brought whether or not proceedings have been brought for an offence in connection with the property. Cases where criminal proceedings have not been brought would include cases where there are insufficient grounds for prosecution, or where the person suspected of the offence is outside the jurisdiction or has died. Cases where criminal proceedings have been brought may include cases where a defendant has been acquitted, or where a conviction did not result in a confiscation order. However, section 308 makes clear that property is not recoverable if it has been taken into account in deciding the amount to be paid under a confiscation order.

All the explanatory notes for the Act

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. F787Word in s. 240(1)(b) substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 28(a); S.I. 2018/78, reg. 5(1)(e); S.I. 2021/724, reg. 4(g)
  2. F788Words in s. 240(1)(b) inserted (27.4.2017 for specified purposes, 31.1.2018 for E.W.S. in so far as not already in force, 28.6.2021 for N.I. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 28(b); S.I. 2018/78, reg. 5(1)(e); S.I. 2021/724, reg. 4(g)