Colin King

The disruption of crime in Scotland through non-conviction based asset forfeiture

Purpose – Targeting criminal assets plays a key role in tackling crime, yet there is a notable absence of research on the operation and impact of this approach. This article calls for greater engagement between policymakers, practitioners and researchers to address this. Using experiences from Scotland, the article focuses on the use of civil recovery and identifies a number of areas that are in need of further research. This paper aims to discuss these issues. Design/methodology/approach – This article is a collaborative effort by a member of the Scottish Civil Recovery Unit and an academic researcher. The aim was to stimulate debate on the use of civil recovery, its impact, and future research directions. It draws upon two case studies from Scotland to illustrate how civil recovery has operated in practice. Findings – There are important distinctions between the civil recovery regime in Scotland and the regime that applies in other parts of the UK (e.g. the absence of “incentivisation”). There is a need to consider how the impact of civil recovery can be measured, and there is scope for future research in this area. Research limitations/implications – There is a notable absence of empirical research on civil recovery. The hope is that this article will lead to greater engagement between policymakers, practitioners and researchers. There is a need for empirical research on areas such as has civil recovery disrupted criminal activities, what intelligence gains does asset recovery bring, does asset recovery offer value for money, how is “impact” to be measured, etc. Practical implications – As civil recovery increases in popularity as a form of crime control, this article calls for greater empirical research on the operation and impact of the civil process to tackling criminal assets. This is especially important today as the European Union is investigating the possibility of a European model of non-conviction based asset recovery. Originality/value – Discussion of civil recovery under the Proceeds of Crime Act 2002 tends to focus on England and Wales. This article considers civil recovery from a Scottish perspective.

Using Civil Processes in Pursuit of Criminal Law Objectives: A Case Study of Non-Conviction Based Asset Forfeiture

Conventional understanding distinguishes between criminal law (and procedures) and civil law (and procedures). These distinctions often rest upon differences as to the moving party, the culpability of a wrongdoer, the nature of a wrong, the remedy available, etc. to determine whether a particular action ought to fall upon the civil or the criminal side of the paradigmatic divide. These distinctions, however, prove problematic in relation to hybrid systems of justice, given legislative attempts to pursue criminal law objectives using civil processes. Using the non-conviction-based asset forfeiture model adopted in Ireland, and drawing upon the test adopted by the US Supreme Court as to what distinguishes the civil from the criminal, this article examines how the Irish judiciary has responded to this approach, ultimately contending that the courts have failed to provide a check against the legislature circumventing enhanced procedural protections of the criminal process and imposing punishment in the civil forum. The article concludes by asking whether a hybrid, or middle-ground, process, in which some enhanced procedural protections are afforded to a person confronted with punitive civil sanctions, offers an alternative to the rigid confines of the conventional civil/criminal dichotomy.

The Seizure of Illicit Assets: Patterns of Civil Forfeiture in Canada and Ireland:

Civil forfeiture is a modern crime control instrument that targets property linked to criminal activity. A recent addition to the states crime control toolbox, the development of civil forfeiture in Ireland and in Canada, shows remarkable resistance to the idea that standard criminal justice safeguards govern the forfeiture process. The stark parallels in these two jurisdictions demonstrate tacit acceptance of a strategy that proves perilous to long-held procedural and substantive rights. By deftly shifting to formally civil instruments, Ireland and Canada have organized an assault on crime that circumvents the conventional criminal law, arguably seriously abrogating rights and procedural justice.

Negotiated Justice and Corporate Crime

This book argues that there is a strong normative argument for using the criminal law as a primary response to corporate crime. In practice, however, corporate crimes are rarely dealt with through criminal sanctioning mechanisms. Rather, the preference – for both prosecutors and corporates – appears to be on negotiating out of the criminal process. Reflecting this emphasis on negotiation, this book examines the use of Civil Recovery Orders and Deferred Prosecution Agreements as responses to corporate crime, and discusses a variety of UK case studies. Drawing upon legal and criminological backgrounds, and with an emphasis on the conceptual frameworks of ‘negotiated justice’ and ‘legitimacy’, the authors examine the law, policy and practice of these enforcement responses. They offer an original, theoretically-informed analysis which is accessible to practitioners and researchers.

Counter terrorism financing: a redundant fragmentation?

A double fragmentation is reflected in the growth of two distinct regimes to respond to the financing of illicit activities. On the one hand are anti-money laundering (AML)/proceeds of crime (PoC) policy and legislation which, in their current guise, can be traced back over four decades. While AML/PoC were in full swing when the hour of need arrived in 2001, CTF has emerged as a distinct field, with a rival degree of complexity and feeble distinct impact. In this way, doubts about the whole strategy of AML/PoC and their usefulness as a ploy for the prevention, disruption, conviction, or punishment of crime do not rule out a read across to CTF because corresponding doubts are harboured, especially if the reading across can improve the chances of success. The core objective for this article is to explore whether this fragmentation was inevitable and should be maintained today. Has the time arrived instead for consolidation? In order to answer these questions, the article will first analyse the background and history of how CTF was developed as an addition to AML/PoC and how it was not incorporated within its predecessor. This initial survey will lead into the second part of the article in which there is reflection on the core characteristics of CTF – its ‘DNA’ – and whether they mark it out as a ‘closed system’ which cannot receive meaning from AML/PoC. The survey forces the recognition of some true distinctions, though not to the extent of confirming autopoetic systems in operation. In the third part of the article, factors of confluence should equally be examined – whether there are strategic and operational imperatives which should press towards confluence rather than dissonance. The conclusion seeks to reflect on the relationship between CTF and AML/PoC, bearing in mind that these are categories which operate primarily not as academic constructs but as formulations which determine personal lives and professional actions.

How Far is Too Far? Theorising Non-Conviction-Based Asset Forfeiture

Non-conviction-based (NCB) asset forfeiture is a relatively recent addition to law enforcements armoury in the fight against organised crime in the UK. It allows for criminal assets to be forfeited to the State even in the absence of criminal conviction, the stated objective being to undermine the profit incentive of criminal activity. Until now, NCB asset forfeiture has principally been critiqued from a criminological point of view, specifically concerning the Packer models and the civil / criminal dichotomy – aside from this, however, it remains rather underdeveloped theoretically. This paper addresses this lack of legal theoretical engagement with NCB asset forfeiture by providing an initial contribution from systems-theoretical perspective. This contribution makes use of systems theory’s unique insights to critique the perceived ‘failure of law’ that gave rise to the NCB approach, and challenges the legitimacy of that approach in terms of procedural rights.

Calling to Answer

This final chapter reinforces our contention that corporate crime is crime and ought to be dealt with as such. The reality, however, is that this is not the case; indeed, corporate prosecutions (particularly involving larger corporates) are relatively rare. Part of the problem here is the inadequacy of corporate criminal liability laws in the UK. This chapter argues that a criminal law-focused approach serves an important communicative function—calling wrongdoers to account as well as expressing societal condemnation of the activity in question.

Negotiated Justice and Enforcement Legitimacy

This chapter situates our discussion within the conceptual frameworks of ‘negotiated justice’ and ‘legitimacy’. This chapter sets out the framework for understanding the legitimacy of enforcement responses to corporate crime, laying the groundwork for discussion of Civil Recovery Orders (CROs) and Deferred Prosecution Agreements (DPAs) in subsequent chapters. This chapter provides an overview of all cases that have used CROs and DPAs to date.

Negotiated Justice and Corporate Crime: An Introduction and Overview

This chapter provides an overview of the book and the contention that ‘accommodation’ of corporate crime—rather than criminal prosecution—is increasingly the ‘new normal’.

Deferred Prosecution Agreements: In Practice

This chapter explores the use of Deferred Prosecution Agreements in practice, analysing the four DPAs that have been negotiated to date.