Asset forfeiture

Asset forfeiture is a term used to describe the confiscation of assets, by the State, which are either (a) the proceeds of crime or (b) the instrumentalities of crime. Instrumentalities of crime are property that was used to facilitate crime, for example cars used to transport illegal narcotics. The terminology used in different jurisdictions varies. Some jurisdictions use the term "confiscation" instead of forfeiture. In recent years there has been a growing trend for countries to introduce civil forfeiture and such proceedings may be brought in the USA, Australia, the UK, Ireland, Italy, South Africa, various Canadian Provinces and Antigua.

Issues

Proponents of seizure suggest that it is a necessary tool to prevent drug trafficking or other crimes. "Asset forfeiture is a law enforcement success story" [1]. Former United States president George H. W. Bush said, "[A]sset forfeiture laws allow [the government] to take the ill-gotten gains of drug kingpins and use them to put more cops on the streets." "Civil forfeiture is legalized theft" [2]

Legal

The civil law/criminal law distinction

Most legal systems distinguish between the criminal and the civil, generally using separate courts, different procedures and different evidential rules. The traditional view is that crimes are public wrongs and that the criminal law addresses those who harm society through morally culpable acts in order that punishment may be imposed and potential offenders may thereby be deterred from committing similar offenses. Criminal proceedings are therefore “officially designated ceremonies of guilt designation” and the label “criminal” carries with it a social stigma, which is not imposed on the losing party in a civil action. Because of this stigma and the potential punishment, which may be imposed by a criminal court, legal systems provide procedural protections above those available to a respondent in a civil case. For example, criminal proceedings require a higher standard of proof than that normally applied in civil proceedings. Generally it is the state that brings criminal proceedings. However, this is not an absolute rule since many jurisdictions also allow private individuals to initiate criminal prosecutions.

The bringing of civil proceedings is, by comparison, primarily the forum for a wronged private individual. Nevertheless this too is not an absolute position, as the state also may sue in the civil courts as a wronged individual, for example, in respect of a contractual dispute with a multinational company. Civil law does not aim to punish, but rather is designed to provide two types of remedy. Firstly, it provides a remedy requiring a return to the way things were, the status quo ante, so as to restore the position of an injured party. Secondly, it provides a remedy to compensate an injured party for harm done to him.

While the traditional view of civil and criminal proceedings might be described as neighboring countries divided by a common border, this dichotomy is not as distinct as that metaphor might suggest. In recent years there has been a growing homogeneity between criminal and civil procedures. Criminal cases now often involve civil, or quasi-civil, procedures and some civil litigation has become quasi-criminal. Indeed it has been said that almost every attribute associated with the criminal law also appears in civil law and visa versa. This “significant disintegration of the wall between criminal and civil proceedings” has occurred on a number of fronts and is due, at least in part, to the fact that multiple strategies are now used to deal with crime. An early example was the use of injunctions to protect victims of domestic violence, even though, to obtain such an injunction, the plaintiff may be alleging the commission of a criminal assault. Rather than the traditional dichotomize perspective therefore, legal proceedings might be better seen as a continuum, with distinctly civil proceedings at one end and clearly criminal proceedings at the other. Between the two ends of the continuum are a range of possibilities, each of which may be more or less criminal or civil.

The trend towards civil forfeiture

The traditional approach to serious criminality has been arrest, followed by the institution of criminal proceedings with a view to conviction and imprisonment. In recent years, such has been the wealth generated from economic crime and, in particular, from drug-related crime, that a confiscation or forfeiture element has been added to the criminal process in many jurisdictions. The need for a broader response than a solely criminal one was recognized by the US President’s Commission on Organized Crime as long ago as 1986 :

”To be successful, an attack on organized crime in our mainstream economy cannot rely solely on the enforcement of federal criminal laws…The Commission believes that a strategy aimed at the legitimate economic base of organized crime must build upon the recent successes of law enforcement, and must be based upon intervention measures as broad based as the nature of the threat posed by organized crime. A strategy in this area should also rely upon civil and regulatory measures tailored to the specific problems confronted…”

Although pioneered in the USA, there now appears to be a global trend to use stand-alone civil proceedings as a means of recovering the proceeds of crime in the hope that they will be more effective than proceedings that are ancillary to and dependent on a criminal prosecution. Recent examples of jurisdictions that have introduced civil forfeiture legislation include Italy, South Africa, Ireland, the United Kingdom, Fiji, the Canadian Provinces of Ontario, Alberta, Manitoba, Saskatchewan and British Columbia, Australia and its individual States, and Antigua and Barbuda. In addition, the Commonwealth has produced model provisions to serve as a template for jurisdictions that wish to introduce such legislation.

This trend towards civil forfeiture has been prompted by the nature of organized crime. Organized crime heads use their resources to keep themselves distant from the crime that they are controlling and to mask the criminal origin of their assets. For this reason it has become extremely difficult to carry out successful criminal investigations leading to the prosecution and conviction of such individuals, with the result that finances derived from crime are often effectively out of the reach of the law and are available to be used to finance more crime. Such peaceful enjoyment of the proceeds of crime damages public confidence in the rule of law and provides harmful role models. This has led to a recognition that criminal confiscation regimes may be inadequate and ineffective in certain cases.

Asset forfeiture in the United States

There are two types of forfeiture cases, criminal and civil. Almost all forfeiture cases practiced today are civil. In civil forfeiture cases, the US Government sues the item of property, not the person; the owner is effectively a third party claimant. Once the government establishes probable cause that the property is subject to forfeiture, the owner must prove on a "preponderance of the evidence" that it is not. The owner need not be judged guilty of any crime. In contrast, criminal forfeiture is usually carried out in a sentence following a conviction and is a punitive act against the offender. Since the government can choose the type of case, a civil case is almost always chosen. The costs of such cases is high for the owner, usually totaling around $10,000 and can take up to three years.

The United States Marshals Service is responsible for managing and disposing of properties seized and forfeited by Department of Justice agencies. It currently manages around $1 billion worth of property. The United States Treasury Department is responsible for managing and disposing of properties seized by Treasury agencies. The goal of both programs is to maximize the net return from seized property by selling at auctions and to the private sector and then using the property and proceeds for law enforcement purposes.

Asset forfeiture in the United Kingdom

In the UK asset forfeiture proceedings are initiated under the Proceeds of Crime Act 2002. These fall into various types. Firstly there are confiscation proceedings, which may follow a criminal conviction. Secondly, there are cash forfeiture proceedings, which take place (in England and Wales) in the Magistrates Court with a right of appeal to the Crown Court, having been brought by either the police or Customs. Thirdly, there are civil recovery proceedings that at the moment are brought by the Assets Recovery Agency "ARA". Under the Serious Crime Act 2007 ARA's functions will be transferred to the Serious Organized Crime Agency and the National Policing Improvement Agency ^[1]. Neither cash proceedings nor proceedings for a civil recovery order require a prior criminal conviction.

In Scotland, confiscation proceedings are initiated by the procurator fiscal or Lord Advocate through the Sheriff Court or High Court of Justiciary. Cash forfeiture and civil recovery are brought by the Civil Recovery Unit of the Scottish Government in the Sheriff court, with appeals to the Court of Session.

Asset forfeiture in Ireland

Ireland was one of the first countries to introduce Asset Forefeiture in the form of the Criminal Assets Bureau which initiates civil forfeiture proceedings and the Director of Public Prosecutions who initiates confiscation proceedings. It was set up under the Criminal Assets Bureau Act,1996 by the Irish Government in response to the murder of investigative journalist Veronica Guerin who was actively digging up dirt on the Irish Criminal Underworld.

Abuses and controversy

The widespread use of such proceedings, which usually involve assertion of in rem jurisdiction, has also brought many complaints about their misuse to deprive innocent persons of their lawful property. Without a requirement to prove that a crime had been committed, much less committed by the party in possession of the property, it has become too easy, the critics say, for law enforcement personnel to seize and prosecutors to forfeit properties worth as much as $20,000 because it will likely cost the person that much in legal fees to recover them. This is because in such cases the courts no longer abide by the old common law rule that the party in possession is to be presumed the lawful owner unless it is proved otherwise. Thus, a person carrying $6,000 in cash to a vehicle auction where the auctioneer will only take cash may be stopped and his cash seized because it is presumed only a drug dealer would have or carry that much cash.

The problem is exacerbated by the laws and rules that allow the agencies seizing the assets to keep the money for their operations, including the funding of salaries and promotions, the purchase of vehicles and equipment, and other such things. In addition, there are often not strict controls on how the assets are liquidated, and law enforcement agents are discovered to have acquired forfeited assets, such as vehicles, boats, and other luxury items, without having paid full market value for them, or even anything at all. There have even been complaints about law enforcement officers seizing cash and other assets under the pretext of forfeiture and then just keeping them without reporting the seizure.

References

^ Serious Crime Act 2007, section 74

External links

[1] Serious Crime Act 2007, section 74

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