The Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005

Limit on recovery

189.—(1) This article applies if the enforcement authority seeks a recovery order—

(a)in respect of both property which is or represents property which satisfies the tests in article 202(1) or (2) and related property, or

(b)in respect of property which is or represents property which satisfies those tests where such an order, or an order under article 187, has previously been made in respect of related property.

(2) For the purposes of this article—

(a)the original property means the property specified in the external order or a sum of money so specified,

(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 article 187.

(4) Subject to paragraph (3), the court may act under paragraph (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 article does not prevent the recovery of any profits which have accrued in respect of the property.

(7) If—

(a)an order is made under section 298 of the Act 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 298 is to be treated, for the purposes of this article as if it were a recovery order obtained by the enforcement authority in respect of the forfeited property.

(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 within the meaning of section 242 of the Act, 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 article 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 article as it were a recovery order obtained by the enforcement authority in respect of the property referred to in sub-paragraph (a).

(10) In paragraph (9), a confiscation order means—

(a)an order under section 6, 92 or 156 of the Act or an external order registered under Parts 2, 3 or 4 of this Order,

(b)an order under a corresponding provision of an enactment mentioned in section 8(7)(a) to (g) of the Act,

and, in relation to an order mentioned in sub-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.