Civil Recovery Orders (CROs) under POCA can be sought in the High Court or Crown Court. They provide for the recovery of property where, on the lower civil standard of proof, it can be established that such property was obtained through unlawful conduct. There is no requirement to obtain a criminal conviction first. On 26 October 2009, the SFO obtained a CRO of almost £5 million against construction firm AMEC plc. Then Director of the SFO, Richard Alderman, had determined that AMEC had failed to comply with its obligations to keep accurate accounts pursuant to section 221 of the Companies Act 1985. This followed an internal investigation (and subsequent self-reporting to the SFO) regarding irregular payments made between November 2005 and March 2007 in connection with a Korean bridge-building project in which AMEC was a shareholder.
The future use of CROs was called into question following the sentencing remarks of Lord Justice Thomas in R v Innospec. The judge rejected the SFO’s suggestion that a CRO would be appropriate as part of the penalty imposed on a corporate that pleaded guilty to conspiracy to corrupt and stressed that those who commit crimes of corruption, including companies, “must not be viewed in any different way to other criminals” and that it would “rarely be appropriate” for a corporate that is guilty of bribery to receive a civil recovery order instead of (rather than in addition to) a criminal fine: “It is of the greatest public interest that the serious criminality of any, including companies, who engage in the corruption of foreign governments, is made patent for all to see by the imposition of criminal and not civil sanctions”. It is on the back of judicial comments like this (as well as criticism from the OECD) that DPAs have been introduced as an alternative prosecution tool in the UK).