by J Boucht · 2017 · Cited by 32 — P Alldridge , Money Laundering Law: Forfeiture,. Confiscation, Civil Recovery, Criminal Laundering and Taxation of the Proceeds of Crime ( Hart Pub- lishing ,
18 pages

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Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland , OR 97213-3786 USA HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2017 © Johan Boucht 2017 Johan Boucht has asserted his right under the Copyright, Designs and Patents Act 1988 to be identiÞ ed as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright © . All House of Lords and House of Commons information used in the work is Parliamentary Copyright © . This information is reused under the terms of the Open Government Licence v3.0 ( http://www. pen-government-licence/version/3 ) except where otherwise stated. All Eur-lex material used in the work is © Eu ropean Union, http://e , 1998Ð2017. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50990-707-6 ePDF: 978-1-50990-709-0 ePub: 978-1-50990-708-3 Library of Congress Cataloging-in-Publication Data Names: Boucht, Johan, author. Title: The limits of asset conÞ scation : on the legitimacy of extended appropriation of criminal proceeds / Johan Boucht. Description: Oxford ; Portland, Oregon : Hart Publishing, an imprint of Bloomsbury Publishing Plc, 2017. | Includes bibliographical references and index. IdentiÞ ers: LCCN 2016059420 (print) | LCCN 2016059678 (ebook) | ISBN 9781509907076 (hardback : alk. paper) | ISBN 9781509907083 (Epub) Subjects: LCSH: ForfeitureÑEurope. ClassiÞ cation: LCC KJC8251.F67 B68 2017 (print) | LCC KJC8251.F67 (ebook) | DDC 345.24/0773Ñdc23 LC record available at Typeset by Compuscript Ltd, Shannon Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall To Þ nd out more about our authors and books visit Her e you will Þ nd extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

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1 Criminal policy is understood here in a broad sense, Ô as a whole, covering the public debate and decision-making pertaining to crime prevention and to the control and sanctioning of criminal behaviour Õ : R Lahti , Ô Towards a Rational and Humane Criminal Policy. Trends in Scandinavian Penal Thinking Õ ( 2000 ) 1 Journal of Scandinavian Studies in Criminology and Crime Prevention 141, 142 . 2 For example, in the infamous English drug-trafÞ cking case, R v Cuthbertson [ 1981 ] AC 470 , the House of Lords had to admit, with Ô considerable regr et Õ , that it lacked the legal competence necessary to strip the defendant of the whole of his ill-gotten gains or the total proÞ ts of his unlawful enterprises. Section 27(1) of the Misuse of Drugs Act 1971, as it applied at the time, only provided the courts with powers to conÞ scate the instruments of the crime, but did not as such extend to the proceeds of crime. 3 H Nelen , Ô Hit Them Where it Hurts the Most? The Proceeds-of-Crime Approach in the Nether- lands Õ ( 2004 ) 41 Crime, Law & Social Change 517 . 4 G Stessens , Money Laundering : A New International Law Enforcement Model ( Cambridge University Press , 2000 ) 12 . RT Naylor , Ô MaÞ as, Myths and Markets : On the Theory and Practice of Enterprise Crime Õ ( 1997 ) 3 ( 3 ) Transnational Organized Crime 1, 34 , argues that the legislative response to organised crime (in the US) has been evolving through a three-fold innovative sequence: Ô First came measures to stop criminals from controlling legitimate businesses; second came attempts to strip criminals of their assets before they could be utilized; and third came (in some jurisdictions) efforts to make membership per se in Ò criminal organizations Ó a crime Õ . This depiction is probably not only valid for the US. 1 Introduction I. The Rise of Extended Appropriation as a Criminal Policy Measure It is a basic point of departure in criminal justice policy that a perpetrator should not proÞ t from his crime ( ex turpi non oritur actio ). 1 Effective schemes for the purpose of depriving offenders of their ill-gotten economic gains are therefore important resources for the control of criminal conduct and its consequences. For many years asset conÞ scation as a crime control measure led a relatively unassuming existence in many countries. Only a few decades ago it was not even unheard of that perpetrators could stand free to beneÞ t from the fruits of their crime after having served their sentences or paid their Þ nes, because of the absence of sufÞ cient asset conÞ scation schemes. 2 During the past few decades, however, this has come to change. There is today a trend towards a Ô follow-the-money approach Õ , whereby the proceeds of unlawful conduct are targeted. The aim is to hit crimi- nals Ô where it hurts the most Õ . 3 Stessens suggested 15 years ago that this trend in international criminal justice policy, orientated towards the Þ nancial proÞ ts of crime, Ô strives to curb crime by taking away the proÞ ts of crime, rather than by punishing the individuals who have allegedly committed the crimes Õ . 4 Under such

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2 Introduction 5 See, eg, the European Parliament Resol ution of 25 October 2011 on organised crime in the European Union (2010/2309 (INI)) para 8, where the Parliament considered the legal framework at EU level inadequate for serious action against the threat of organised crime. It urged the Commission to submit a proposal for a directive on the seizure and conÞ scation of criminal proceeds in order, inter alia, Ô to elaborate rules on the effective use of extended and non-conviction-based conÞ scation Õ , and Ô to elaborate rules concerning the mitigation of the burden of proof after the conviction of an offender of a serious offence (including offences related to organised crime) concerning the origin of assets held by the offender Õ . See also Delivering an area of freedom, security and justice for Europe ‘ s citizens. Action Plan Implementing the Stockholm Programme (COM (2010) 171 Þ nal), para 5. For the Norwegian strategy, see Regjeringens handlingsplan mot ¿ konomisk kriminalit et, Justis- og politidepartementet. Finansde- partementet (G-0422) and Mld St 7 (2010 Ð 2011). For an overview of the development of asset conÞ scation law, see M Fernandez-Bertier, ÔThe history of ConÞ scation Laws: From the Book of Exodus to the War on White-Collar CrimeÕ, in K Ligeti and M Simonato (eds), Chasing Criminal Money. Challenges and Perspectives On Asset Recovery in the EU (Hart Publishing, 2017), 51Ð73. 6 Financial Action Task Force, The FATF Recommendations. International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation (February 2012; published 2013) 7. a policy approach, effective conÞ scation of criminal proÞ ts is of crucial impor- tance. The creation of effective conÞ scation schemes as a means of controlling criminal proÞ teering and acquisitive crime has therefore become an increasingly prioritised topic, both int ernationally and nationally. 5 The implementation of asset conÞ scation regimes has also been encouraged by a number of international instruments. Examples are the UN Convention against Illicit TrafÞ c in Narcotic and Psychotropic Substances 1988 (the Vienna Conven- tion), the UN Convention against Corruption 2003, as well as the UN Convention against Transnational Crime 2000 (the Palermo Convention). The UN Conven- tion for the Suppression of the Financing of Terrorism 1999 and the Council of Europe Conventions on Laundering, Search, Seizure and ConÞ scation of the Pro- ceeds from Crime of 1990 and 2005 are also important. These instruments often advocate conÞ scation powers that are as broad as possible within the domestic legal system and according to domest ic legal principles. Several instruments also recommend states to consider the possibility of requiring that an offender dem- onstrate the lawful origin of alleged proc eeds of crime or other property liable to conÞ scation, to the extent that such a requirement is consistent with the principles of their domestic law and with the nature of judicial and other proceedings. Furthermore, the Financial Action Task Force (FATF), an intergovernmen- tal organisation founded in 1989 on the initiative of the G7 to develop policies to combat money laundering, has acted as an important pressure group in this context. The mandate of the group Ô is to set standards and to promote effec- tive implementation of legal, regulat ory and operational measures for combat- ing money laundering, terrorist Þ nancing and the Þ nancing of proliferation, and other related threats to the integrity of the international Þ nancial system Õ . 6 In 1990 the group issued 40 recommendations to combat the misuse of Þ nancial systems by persons laundering drug money, and to make the control of money laundering more efÞ cient. These recommendations have subsequently been revised (in 1996 and 2003), as well as expanded (to terrorism funding in 2001). Incentivising states to adopt sufÞ cient conÞ scation measures is an important

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3The Rise of Extended Appropriation as a Criminal Policy Measure 7 M Simonato , Ô Directive 2014/42/EU and Non-Conviction Based ConÞ scation. A Step Forward on Asset Recovery? Õ ( 2015 ) 6 New Journal of Criminal Law 213, 216 Ð 17 . 8 An important motivation for organised crime groups is often considered to be the generation of Þ nancial gain. See L Holmes , Advanced Introduction to Organised Crime ( Elgar , 2016 ) 2 Ð 14 . 9 ConÞ scation of criminal proceeds particularly as a means to Þ ght organised crime and drug trafÞ ck- ing began to receive political attention in the 1980s. See M Pieth â Ô Recovering stolen assets Ñ a new issue Õ in Pieth, M (ed), Recovering Stolen Assets ( Peter Lang Verlag , 2008 ) 6 . In the UK, eg, conÞ scation provi- sions empowering courts to conÞ scate the proceeds of drug-related offences were enacted in England and Wales as a result of the work of the Hodgson Committee (which was set up in 1982). This resulted in the conÞ scation regime in the Drug TrafÞ cking Offences Act 1986 (which was replaced by the 1994 Act), and subsequently was extended to most other offences by the Criminal Justice Acts 1988 and 1990. The asset conÞ scation provisions were consolidated by the Proceeds of Crime Act (POCA) 2002 (which also replace d the POCA 1996). Controlling and containing organised crime also seems to have been an important reason for introducing extended conÞ scation at EU level, see COM (2012) 85 Þ nal, p 15. See also, eg, the action plan, Ô The Prevention and Control of Organised Crime: A European Union Strategy for the beginning of the new Millennium Õ [ 2000 ] OJ C124/01 , particularly recommendation 19, which urges that an examination be made of Ô the possible need for an instrument which, taking into account best practices operating in the Member States and with due respect to fundamental legal principles, introduces the possibility of mitigating, under criminal, civil or Þ scal law, as appropriate, the onus of proof regarding the source of assets held by a person convicted of an offence related to organised crime Õ (see also Ô Part 1: Background Õ ). See further Pre-accession Pact on organised crime between the Member States of the European Union and the applicant countries of Central and Eastern Europe and Cyprus [1998] OJ C220/01, 1. A similar tendency can also be seen in other jurisdictions. For exam- ple, regarding the development in Australia, see A Goldsmith, D Gray and RG Smith , Ô Criminal Asset part of the group Õ s policy ambitions. According to Recommendation no 4, countries should adopt measures to enable their competent authorities to freeze or seize and conÞ scate the follow- ing, without prejudicing the rights of bona Þ de third parties: (a) property laundered, (b) proceeds from, or instrumentalities used in or intended for use in money launder- ing or predicate offences, (c) property that is the proceeds of, or used in, or intended or allocated for use in, the Þ nancing of terrorism, terrorist acts or terrorist organisations, or (d) property of corresponding value. It is also recommended, to the extent that it is consistent with domestic principles of law, that countries either adopt NCB conÞ scation measures allowing for conÞ s- cation without requiring a criminal conviction, or use a reversed burden of proof in criminal conÞ scation proceedings that would require an offender to demon- strate the lawful origin of the property alleged to be liable to conÞ scation. In Europe, the EU has also been an important actor in developing conÞ scation law for the purpose of making conÞ scation in the EU more effective. The EU has been particularly active in the Þ eld of harmonising conÞ scation regimes, for facilitating mutual recognition of conÞ scation orders and horizontal cooperation between the EU member states. 7 This development towards a stronger proÞ t-orientated crime-Þ ghting approach may also be viewed against the policy narrative relating to the Þ ght against serious and organised crime. 8 The growing focus on the potency of asset conÞ scation seems to some degree to have coincided with a growing awareness of the threat from organised crime and serious economic crime. 9 Along with

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4 Introduction Recovery in Australia Õ in C King and C Walker (eds), Dirty Assets, Emerging Issues in the Regulation of Criminal and Terrorist Assets ( Ashgate , 2014 ) 115 Ð 39 . For an analysis of the impact of the organ- ised crime narrative on UK legislation, see L Campbell , Organised Crime and the Law: A Comparative Analysis ( Hart Publishing , 2013 ) . 10 Home OfÞ ce, New Powers against Organised and Financial Crime (July 2006) 24. 11 These problems have been further reinforced by globalisation and the opened borders in Europe. See, eg, Europol SOCTA 2013. 12 R v Ahmad [ 2014 ] 3 WLR 23 , para 36. this came a realisation that existing criminal conÞ scation regimes might not be sufÞ cient for effectively recovering criminal proceeds. A broader approach to conÞ scation, Ô expected to have a considerable impact in terms of bringing organised criminals to justice Õ , 10 was thus considered necessary. For example, characteristic of what in this context is referred to as Ô regular criminal conÞ s- cation Õ is that only proceeds that the state is able to clearly link causally to a particular offence, of which the defendant has been duly convicted, may be con- Þ scated. A strict causal requirement may, however, inhibit effective implemen- tation in cases where it is difÞ cult to prove that particular assets derive from a speciÞ c criminal offence. Even if the assets in question are likely to originate from criminal activity (for example, the individual possesses property to an extent that is exceedingly disproportionate to his lawful income), a conÞ scation claim may nevertheless be rejected where the assets have not been linked to an offence of which the defendant is convicted. ConÞ scation proceedings may also be linked with practical and evidential difÞ -culties, particularly in connection with more sophisticated offences, such as large- scale Þ nancial frauds, substantial drug trafÞ cking and people trafÞ cking, which may involve many people and are often mobile, transnational and organisation- ally complex. 11 DifÞ culties may originate in lack of evidence and the defendants Õ unwillingness to cooperate, as well as in the practical features of the crimes in ques- tion. The challenges faced by the state were aptly described by Lords Neuberger, Hughes and Toulson in R v Ahmad : 12 First, there are the practical impediments in the way of identifying, locating and recover- ing assets actually obtained through crime and then held by the criminals. The defend- ants will often, indeed normally, be as misleading and uninformative as they can, and the sophistications and occasional corruptions in the international Þ nancial community are such as to render the task of locating the proceeds of crime very hard, often impossible. Secondly, again owing to the reticence and dishonesty of the defendants, there will often be considerable, or even complete, uncertainty as to (i) the number, identity and role of the conspirators involved in the crime, and (ii) the quantum of the total proceeds of the crime, or how, when, and pursuant to what understanding or arrangement, the proceeds were, or were to be, distributed between the various conspirators. In attempting to overcome some of the difÞ culties involved and to make con- Þ scation more effective, the focus of policymakers has in many jurisdictions

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6 Introduction 15 On NCB conÞ scation measures in Europe, see JP Rui and U Sieber (eds), Non-Conviction Based ConÞ scation in Europe. Possibilities and Limitations on Rules Enabling ConÞ scation Without a Crimi- nal Conviction ( Duncker Humblot , 2015 ) 69 . In the US, NCB conÞ scation schemes (both federal and State) have existed for a long time. See SD Cassella , Asset Forfeiture Law in the United States ( JurisNet LLC , 2013 ) 31 Ð 37 . The Þ rst leading NCB conÞ scation case was apparently Boyd v United States , 116 US 616 ( 1886 ), 634 . In Norway an inquiry into the possible need for introducing an NCB conÞ scation scheme is underway, see JP Rui, Betenkning: Sivilrettslig inndragning rettet direkte mot formuesgoder (Justisdepartementet, 2016). 16 See Art 5 in the Commission Õ s proposal COM (2012) 85 Þ nal. 17 Stessens, Money Laundering , 5, 83, who described the corresponding aims of law enforcement as Ô detecting the crimes that were committed in order to bring the alleged perpetrators to trial, and identifying the proceeds from crime so that they can be conÞ scated Õ . The Cash Connection: Organized Crime, Financial Institutions, and Money Laundering, The [US] President Õ s Commission on Organized Crime (Washington, DC, 1985) 7, describes money laundering as Ô the process by which one conceals the existence, illegal source, or illegal application of income, and then disguises that income to make it appear legal Õ . As regards the EU Õ s meas ures against money laundering, see Directive (EU) 2015/849 of the European Parliament and the Council on the prevention of the use of the Þ nancial system for the purpose of money laundering and terrorist Þ nancing (20.05.2015) (the Fourth Money Laundering Directive). On 5.2.2013 the Commission proposed a new directive on the prevention of the use of the Þ nancial system for the purpose of money laundering and terrorist Þ nancing (COM/2013/045 Þ nal and 2013/0025 (COD)). 18 See Stessens, Money Laundering , 96 Ð 112. 19 For a critique, see P Alldridge , Ô The Moral Limits of the Crime of Money Laundering Õ ( 2001 ) 5 Buffalo Criminal Law Review 279, 288 , who questions whether money laundering will have the effect of reducing predicate offences. 20 Money laundering may be seen as morally objectionable, as a kind of post factum complic- ity in the predicate offence. Where the launderer has had the criminal intent to assist in laundering NCB conÞ scation schemes, for example the UK, Ireland, Italy, Bulgaria and Slovenia. 15 The introduction of NCB conÞ scation measures at EU level was con- sidered in connection with the proposal for a directive on the freezing and conÞ s- cation of unlawful assets in 2012, but was eventually scrapped. 16 Linked to this broadening development in asset conÞ scation law is the Þ ght against money laundering. According to Stessens, money laundering essentially has two goals: to conceal the predicate offences from which these proceeds are derived; and to ensure that the offenders can beneÞ t from their proceeds, by con- suming or investing them in the legal economy, without the risk of having them conÞ scated. 17 Money-laundering regulation normally follows a twin-track system: preventive Þ nancial (banking) law, which creates, for example, reporting duties for Þ nancial institutions, and repressive criminal law, which criminalises money laundering. 18 Even if the focus of anti-money-laundering measures is more on the illicit assets than on the underlying predicate offences, the measures are often seen as a tool in seeking to reduce predicate crime. 19 One reason for criminalising money laun- dering is the evidential difÞ culties that may be connected with criminal proceed- ings against criminal networks: because of how these networks operate, it may be difÞ cult to link top-level criminals to the predicate offences in question. When money laundering is criminalised the state no longer needs to prove a direct link to the predicate offence, as long as it can prove, for example by way of identifying a paper trail, that the individual has come into contact with unlawfully obtained proceeds. 20

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7The Rise of Extended Appropriation as a Criminal Policy Measure the proceeds of a criminal offence prior to committing the offence, he could in many instances be convicted of complicity in the predicate offence. P Alldridge , Money Laundering Law : Forfeiture, ConÞ scation, Civil Recovery, Criminal Laundering and Taxation of the Proceeds of Crime ( Hart Pub- lishing , 2003 ) 210 , notes that Ô [o]ffences of handling have the obvious similarity to offences of laun- dering in that they are offences of disposal of unlawfully acquired property. There is a substantial overlap between handling and laundering offences and there have been suggestions that the laundering offences are little but an updated version of handling. In many ways the panic surrounding laundering now has echoes of that surrounding Wild and the other thief-takers in the eighteenth century. Õ See also S Green , 13 Ways to Steal a Bicycle ( Harvard University Press , 2012 ) 341 , fn 200. However, for a critique of this argument, see Alldridge, Ô The Moral Limits of the Crime of Money Laundering Õ , 288 Ð 89. For a critical overview of (economic) justiÞ cations for criminalising money laundering, see Alldridge, Money Laundering Law , 29 Ð 43. See also P Alldridge , What Went Wrong with Money Laundering Law ( Palgrave Macmillan , 2016 ) . 21 Stessens, Money Laundering , 85, observes: Ô The primary reason for Þ ghting money laundering is to enable law enforcement authorities to conÞ scate the proceeds of predicate criminal activities in those situations where conÞ scation might not otherwise be possible. É As with the conÞ scation of proceeds from crime, the criminalisation of money laundering aims to undermine crime and especially organized crime by taking away the incentive for these criminal activities, that is, the Þ nancial gains Õ . See also JP Rui , Hvitvasking. Fenomenet, regelverket, nye strategier ( Universitetsforlaget , 2012 ) 72 . 22 Although the current approach has not been without its critics. For example, RT Naylor , Ô Wash-out: A Critique of Follow-the-Money Methods in Crime Control Policy Õ ( 1999 ) 32 Crime, Law and Social Change 1, 1 , argues that the perceived appeal of the follow-the-money approach has Ô its roots in myth and misunderstanding about the nature and operation of the criminal marketplace Õ . See also Alldridge, Money Laundering Law , 42. When the defendant is convicted of money laundering, his assets may then be conÞ scated by way of regular criminal conÞ scation. The criminalisation of money laundering means that the criminalised sphere is moved considerably further away from the predicate offence. The reasons for extending asset recovery schemes essentially therefore seem to coincide with those instigating criminalisation of money laundering: the difÞ culties in proving a con- nection to criminal offences by leaders of criminal organisations or high-level criminals leading a criminal lifestyle, due to the highly organised character of the groups and the distance between the primary offence and the assets. 21 While criminalising money laundering broadens the use of regular criminal conÞ sca- tion, extended appropriation strives at broadening the sphere of asset conÞ scation in other cases. Extended appropriation and the criminalisation of money launder- ing may therefore be seen as supplementary to one another. The moral imperative that no one should beneÞ t from his crime is generally strong. There is considerable public policy support for having mechanisms in place that facilitate effective appropriation of illicit proÞ ts generated, in some cases even where the individual has not been convicted. 22 Economically motivated crime, such as corruption, serious fraud, drug and people trafÞ cking and so on, have adverse effects on many parts of society, and the illicit proÞ ts generated through these activities may be considerable. It is also important that the rules are constructed in a way that facilitates effective implementation and the achievement of their objectives. However, when implementing conÞ scation schemes it is crucial that the rights of the individual are also effectively safeguarded. It is, in other words,

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8 Introduction 23 There seems to be a tendency to invoke the organised crime narrative not only as an argument to create conÞ scation schemes directed particularly at this kind of criminality, but also as a justiÞ cation for introducing generally applicable and broader conÞ scation schemes, thus increasing the general harshness of the criminal justice system. 24 Regarding the presumption of innocence and extended conÞ scation, see, eg, T Weigend , Ô Assuming that the Defendant is Not Guilty : The Presumption of Innocence in the German System of Criminal Justice Õ ( 2014 ) 8 Criminal Law and Philosophy 285, 295 . 25 See Ch 5 of this volume. important to Þ nd a fair balance, both substantively and procedurally, between the public interests of the state and those of the individual. The maxim Ô the end justi- Þ es the means Õ should not apply without limitations. Although the focus on criminal proÞ ts of crime is positive as such, the present development gives rise to a number of concerns. Even if the introduction and initial development of broader asset conÞ scation (and anti-money-laundering) regimes were to a considerable degree motivated by the Þ ght against organised crime and international drug trafÞ cking, these powerful criminal law measures now seem to have taken on a momentum of their own. They are no longer necessarily limited to being used in the Þ ght against drug trafÞ cking and organised crime, but represent general law enforcement tools that may be invoked in regard to most acquisitive crime. 23 Even if certain draconian measures may be legitimate in some instances, or at least less controversial against certain kinds of offences, these measures may impose excessive burdens on other individuals ( Ô regular offenders Õ ). Extended appropriation schemes represent potent crime control resources that potentially facilitate the conÞ scation of considerable assets following more or less substantiated allegations of criminal origin in proceedings where tradi- tional safeguards of criminal proceedings aimed at protecting defendants have been diluted. Extended criminal conÞ scation following the conviction of a predi- cate offence, based on an assumption of prior criminality of which the defendant has not been convicted, raises issues, for example, in regard to the presumption of innocence. 24 In NCB conÞ scation no predicate criminal conviction is even required at all. The broader these schemes are, and the further away from con- cretised predicate criminal conduct they operate, the greater also is the risk of targeting legitimate possessions, which should not have been liable to conÞ sca- tion in the Þ rst place. In addition, conÞ scation imposing a more far-reaching detriment on the individual than is necessary for achieving a restitutionary aim will in principle be of a repressive nature. 25 This again brings into question the relationship with criminal punishment. Imposing such a detriment is even more problematic if it occurs without the existence of a criminal conviction. These concerns should be taken seriously. In many cases, of course, the assets targeted in fact are or represent criminal proceeds, and the ordering of conÞ scation is therefore legitimate. However, an important policy question is how the distribution of error Ñ that is, the risk of targeting assets that are in fact legitimate Ñ should be allocated. There is a ten- dency to emphasise the difference between asset deprival and the establishment

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9The Rise of Extended Appropriation as a Criminal Policy Measure 26 In Guidance for prosecutors and investigators on their asset recovery powers under Section 2A of the Proceeds of Crime Act 2002 by the UK Attorney-General Õ s OfÞ ce (29 November 2012), criminal of criminal liability, in the sense that the former requires fewer safeguards to be put in place. Thus the traditional Bl ackstonian standard of rather acquitting 10 guilty persons than wrongly convicting one innocent is not considered to apply, at least not with the same force. It is true that there is a difference in princi- ple between measures aiming at the establishment of criminal guilt and those that target allegedly illicit assets. However, even if such difference is acknowledged, it may be questioned, in view of the potential consequences of extended appropria- tion, how far this argument can legitimately be used in justifying the dilution of procedural safeguards and substantive restrictions in asset conÞ scation proceed- ings. Moreover, where legitimate property is wrongly conÞ scated, the individual Õ s right to property is in principle violated. Furthermore, as suggested in Chapter 4, the potential stigmatising effects, as well as the negative effects of conÞ scation on an individual Õ s reputation, should not be underestimated. As conÞ scation may target assets of considerable magnitude, even the entirety of an individual Õ s pos- sessions, it may also have adverse social effects on the individual who is liable to conÞ scation. Such effects may relate to the re-socialisation of offenders into society, the social situation of the individual (losing considerable wealth may lead to divorce, loss of a job, or even suicide) and the impact on family members (for example, where the family home is conÞ scated). These aspects also should not be taken lightly. All this seems to suggest that there should be safeguards in place that are capable not only of reducing the risk of wrongful conÞ scation decisions, but also of ensuring that equitable considerations are taken into account when assess- ing the magnitude of the order, where this is reasonable. There are other concerns as well. ConÞ scation schemes are sometimes created in fairly broad terms and rely on a presumption of reasonable discretion being exercised by the prosecutors and judges who pursue them. The increased focus on asset conÞ scation as a tool in the Þ ght against serious organised and economic crime can, however, make policy makers blind to the potential risk to individuals Õ rights that overly broad powers potentially may entail. Considering the potency of these tools and the consequences they may impose on the individual, it would seem reasonable to expect the rules to be sufÞ ciently clearly and narrowly deÞ ned, and that they should not confer too wide a discretion. Particularly in regard to NCB conÞ scation proceedings, there is also a worry that some cases that should properly have been dealt with within the criminal procedural framework are pur- sued only within NCB conÞ scation proceedings because it is easier merely to go after the money. The focus of law enforcement agencies should, where appropri- ate, be on establishing criminal liability (and criminal conÞ scation), rather than on taking the Ô easy way Õ by targeting the assets and disregarding the potential crim- inal law aspects of the case. 26 As a point of departure, NCB conÞ scation should only be supplementary to the criminal track.

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