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There has been recent criticism of the effectiveness of the procedure for the recovery of assets under the Proceeds of Crime Act 2002 ("POCA"). Whilst most of that criticism is aimed at a lack of resources in the system, it is good to report on a recent success story for POCA.
The case of Adeel Mirza, who was convicted of nine counts of fraud in 2013 and jailed for six years, is salient. Following conviction a Confiscation Order was imposed ordering Mirza to pay £4,180,788.32.
Prosecutors were faced with difficulties in this case because the majority of Mirza's UK property portfolio was registered to a trust in Jersey. The CPS was able to register the Confiscation Order in Jersey allowing the properties to be seized and sold.
All of this leads onto the question of how victims of crime should seek to recover their money, and which way is best - via the civil route, or through the criminal courts?
Civil recovery may not suit everyone, and deep pockets are required. Interim injunctions can be obtained very shortly after issuing civil proceedings, subject to the court agreeing that, among other things, the claim has a reasonable prospect of success - a relatively low threshold when compared to the criminal standard of proof. Further, there is the option of applying to strike out defences put forward, provided that the Court can be satisfied that the defence does not disclose reasonable grounds for defending the claim. Summary judgement is available provided that the court is satisfied that the defence has no reasonable prospect of success. Either could result in a resolution of the matter within a few months (court lists permitting)
However, for most victims of fraud, it is often cheaper to bring a criminal prosecution than to pursue a claim through civil litigation. Admittedly the costs budget mechanisms introduced as part of the Jackson Reforms are intended to reduce the costs for High Court cases, and also make it easier for litigants to anticipate the cost of pursuing civil proceedings. However, the Court application costs can be prohibitively expensive.
There are benefits to the criminal system. Where the defendant is unable to pay the full amount when sentenced, in the event that the defendant later acquires further assets/ money, an application may be brought at a later date to recover additional monies. The obligation imposed upon the defendant to pay is only ever discharged upon payment in full. Vitally, the courts also have the power to impose prison sentences if the defendant defaults on payment.