Proceeds of Crime: Civil Asset Recovery

An old "run-down" chapel located in a smart suburb, bought at an undervalue.  The same property renovated to high standards with beech flooring, modern kitchen and bathroom - all from unidentified sources.  A lifestyle with expenditure including £11,525 on a gold watch and various cars (a Lexus, a Bentley Mulsanne, a Porsche and an armour-plated BMW).  Lack of any evidence of either a legitimate or any source of income.  This is some of the evidence by which the High Court concluded that Mr Aaron Coghlan was engaged in unlawful conduct as a drug dealer between 1999 and April 2004 - see Serious Organised Crime Agency v Aaron Charlton Coghlan and Claire Lisa Burgoyne [2012]EWHC 429 (QB) Simon J.  The outcome of the case was that the house (referred to as "The Chapel") was recoverable property and will, under the court's order, vest in the Trustee for Civil Recovery.

Mr Coghlan has had an interesting life.  In 1996, he was
acquitted of the murder (in 1994) of Chris Little.  In April 2001 he was arrested for the murder of David Barnshaw and, in November 2002, tried at the Crown Court at Preston along with 6 others on charges of murder, conspiracy to murder, conspiracy to supply cocaine and cannabis and a count of perverting the course of justice.  After 2 juries were discharged for legal reasons, the prosecution case ran into difficulties which led the trial judge Penry-Davey J to stay the indictment against all defendants.  The learned judge took a dim view of the Police conduct in that they had not followed up critical intelligence relating to potential suspects other than the defendants and they had later concealed relevant material from the prosecution lawyers.  In February 2010, Coghlan was arrested and charged with the murder of Stephen Akinyemi who was found dead at Coghlan's house.  Coghlan always maintained that Akinyemi was killed in lawful self defence, and this was eventually accepted by the Prosecution.    Coghlan has not had any criminal convictions since 1997 and has consistently claimed that he is the target of harassment by the Greater Manchester Police - see paragraph 11 of Simon J's judgment.

The relevant legislation permitting recovery of property is the Proceeds of Crime Act 2002 - POCA.  Part 5 of the Act permits Civil Recovery of the proceeds of unlawful conduct.  Unlawful conduct is defined as conduct which is unlawful under the criminal law.  The proceedings under Part 5 are "civil" in nature and the court decides on a balance of probabilities whether it is proved that the matters alleged to constitute unlawful conduct have occurred.

In the Coghlan case, Simon J neatly pulled together the key principles to be applied in cases under POCA Part 5.   The purpose of proceedings is not to punish but to ensure that property derived from criminal conduct is taken out of circulation.  The standard of proof is the civil standard  - on this see the Supreme Court's judgment in Gale v SOCA [2011] UKSC 49.   In proceedings following an acquittal, the court should be astute to ensure that nothing it says or decides is calculated to cast the least doubt upon the correctness of the acquittal.  A civil recovery order cannot be made solely on the basis of no identifiable lawful income to warrant a particular lifestyle but an inference can be drawn from failure to provide an explanation or from a deliberately untruthful explanation.  The court is entitled to take a commonsense approach to inferences which may be drawn from evidence or the lack of evidence.  [See the judgment of Simon J at paras. 14-17].

The Attorney-General has issued guidance as to when it is appropriate to use POCA Part 5.  See also SOCA "How we work."   An interesting article on Part 5 is in "Accounting Evidence" - David Winch - "Civil recovery under POCA 2002 and the acquitted defendant."

Serious Organised Crime Agency website