(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.
[F836 (6A)If—
(a)recoverable property is forfeited in pursuance of a forfeiture notice under section 297A [F837 or an account forfeiture notice under section 303Z9F837] , and
(b)the enforcement authority subsequently seeks a recovery order in respect of related property,
the [F838 noticeF838] 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.F836]
(7)If—
(a)an order is made under section 298 [F839, 303O [F840 , 303RF840] [F841 , 303Z14, 303Z41, 303Z45 or 303Z60F841,F839]] for the forfeiture of recoverable property, and
(b)the enforcement authority subsequently seeks a recovery order in respect of related property,
the order under [F842that sectionF842] 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.
[F843 (7A)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.F843]
[F844 (7B)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.F844]
(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.
375.Subject to certain safeguards described elsewhere (e.g. for bona fide purchasers), property is recoverable if:
it was obtained through unlawful conduct, or
it ‘represents’ property obtained through unlawful conduct.
376.Under section 305, property may come to ‘represent’ the original property where a person has disposed of the original property and has obtained other property in place of it. Moreover, property obtained in place of representative property may itself become representative property. Under subsection (2), items of original and representative property are to be treated as ‘related’ property. If property is recoverable, it may remain recoverable after passing through several hands in a series of transactions. The right of the enforcement authority to trace its claim over the recoverable property is analogous to similar tracing rights in civil law proprietary litigation. Either original or representative property may be traced in this way.
377.However, there is potential for a large family of related property to grow up as a result of such a series of transactions, comprising the original property and several items of representative property. Each of these items will potentially be recoverable. But if the enforcement authority were to recover the entire family of recoverable property, that would be disproportionate to its primary right to recover the original property.
378.Section 278 addresses this situation by providing a series of rules designed to ensure that if the enforcement authority seeks to recover items of related property, rather than confining itself to the original property, the court is able to limit its recovery order to what it thinks is necessary to satisfy the enforcement authority’s right to recover the original property.
379.For example, the provisions ensure that the enforcement authority cannot recover representative property in addition to the original property. If the enforcement authority pursues more than one avenue of recovery simultaneously, for example where the original property cannot be found, the court has some flexibility under subsections (4) and (5) as to how the enforcement authority’s interest should be satisfied. The court may order full recovery of some items of the related property but not others; or it may order partial recovery of some or all of the items; or a combination of both.
380.Nothing in this section prevents a court, where it makes a recovery order in respect of property, from also ordering the recovery of any profits that have accrued in respect of that property (subsection (6)).
381.If a forfeiture order has been made under section 298 in respect of cash which was found to constitute recoverable property, it is to be treated for the purpose of this section as though it were a recovery order, so that the limitations on recovery in this section will apply (subsection (7)). This ensures that the proceeds of the same criminal conduct cannot be recovered twice, first through the cash forfeiture scheme in Chapter 3 and then again through civil recovery.
382.Similarly, subsection (8) ensures that the enforcement authority cannot secure an order under the civil recovery scheme if the property that was obtained through the unlawful conduct concerned, or property which represents it, has already been recovered by the victim of the conduct in civil litigation. And subsections (9) and (10) make similar provision in respect of property which has been taken into account in deciding a person’s benefit from criminal conduct for the purposes of making a confiscation order under Parts 2, 3 or 4 of the Act or corresponding provisions.