Filthy Lucre and Ill-Gotten Gains
| Author | Nick Dent |
| DOI | 10.1350/jcla.2011.75.2.692 |
| Published date | 01 April 2011 |
| Date | 01 April 2011 |
| Subject Matter | Comment |
COMMENT
Filthy Lucre and Ill-gotten Gains
Nick Dent*
Keywords Proceeds of Crime Act 2002; Civil recovery order; Serious
Organised Crime Agency; Criminal memoirs; Recoverable property
The Proceeds of Crime Act 2002 (‘the 2002 Act’) heralded an inventive
change of direction in addressing the benefits of crime. The provisions of
the 2002 Act are specifically aimed at recovering any proceeds from
crime or ‘unlawful conduct’. This is clearly a popular measure for the
voting public, who would no doubt like to see ‘criminals’ paying for their
wrongdoing. It is also a coup for vote-courting politicians, as it provides
evidence to back up the mantra of being tough on the causes of crime.
The theory is straightforward: by removing the benefits of crime, crime
will necessarily become less appealing. Alternatively, if the deterrent
does not succeed, then the benefits of crime can be recouped to com-
pensate for the wrongdoing. The 2002 Act introduced a regime of civil
recovery, essentially allowing the Assets Recover Agency (ARA) and
other bodies to sue suspected ‘criminals’. These actions, alarmingly,
could be brought in the absence of a conviction and notwithstanding an
acquittal. Moreover, recent developments demonstrate that civil recov-
ery orders may well become an increasingly popular avenue for prose-
cutors to pursue, using them against corporations rather than just
individuals. Whilst civil recovery mechanisms have become a conven-
ient method of addressing wrongdoing and recovering financial rewards
of such wrongdoing, there is a clear danger of not just an abuse of
process, but, paradoxically, a preference for the convenience of fines
rather than criminal convictions. The subversive argument follows that
this is another example, along with control orders and ASBOs, of the
government circumventing the criminal law by using the civil law in
order to persecute people who have not been convicted in front of a
jury.
The background
The Proceeds of Crime Act 2002 received Royal Assent on 24 July 2002
and came into force on 24 March 2003. The 2002 Act not only con-
solidates and adds to the criminal confiscation regimes of s. 72AA of the
Criminal Justice Act 1988 and s. 4 of the Drug Trafficking Act 1994, but
also creates a new regime which sits outside the ambit of the criminal
law and squarely within the civil law. The criminal law regimes of
confiscation and seizure are in themselves far-reaching and contro-
versial; however, at least they follow established procedural principles.
A civil regime was introduced in Part 5 of the 2002 Act, ‘Civil
Recovery of the Proceeds, etc. of Unlawful Conduct’, introducing, inter
* Trainee Solicitor, Hodge Jones & Allen; e-mail: nick_dent@hotmail.co.uk.
115The Journal of Criminal Law (2011) 75 JCL 115–121
doi:10.1350/jcla.2011.75.2.692
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