Prosecutorial challenges in freezing and forfeiting proceeds of transnational crime and the use of international asset sharing to promote international cooperation
| Pages | 104-114 |
| Date | 01 April 2005 |
| Published date | 01 April 2005 |
| DOI | https://doi.org/10.1108/13685200510621109 |
| Author | Anthony Smellie |
| Subject Matter | Accounting & finance |
Journal of Money Laundering Control Ð Vol. 8 No. 2
Prosecutorial Challenges in Freezing and
Forfeiting Proceeds of Transnational Crime
and the Use of International Asset Sharing to
Promote International Cooperation
Anthony Smellie
INTRODUCTION
The worldwide adoption of laws which enable the
con®scation of the proceeds of crime re¯ects the
acknowledged importance of depriving the criminal
of the pro®ts of crime. These laws recognise that
organised criminals use their proceeds of crime to insu-
late themselves, by the use of intermediaries, from
detection and arrest. They acknowledge that the
more pro®table the crime, the more dicult it
becomes for law enforcement to link the criminal to
it. That the proceeds of crime become the very
means by which the bastions of organised crime can
be created and sustained.
Indeed, the recognition of this reality is not recent. It
has been acknowledged in the annals of modern law
enforcement ever since the successful prosecution of
Al Capone for tax evasion.
1
The accepted account is
that his more heinous crimes could not be proven
because he was so well organised. Instead the focus
upon his elaborate lifestyle exposed the vulnerability
which led to his downfall.
The moral of Al Capone's case (and one which
seems to continue to enlighten American law enforce-
ment
2
) is that the only sure way of putting the `Mr
Bigs' out of business is to con®scate their proceeds of
crime. Other remedies taken, such as sanctions and
blacklistings of foreign states and persons deemed
associated with `King Pins', have been of little more
than symbolic eect.
3
The more eective recourse Ð con®scation of
assets Ð is also based upon acknowled ged moral and
social principles. The most fundamental of these is
that no person should be allowed to become unjustly
enriched at the expense of his victims or of society at
large.
4
The extreme measures used by the criminal
to obtain and keep his proceeds of crime, have come
to justify the draconian measures needed for eective
law enforcement.
Throughout the common law world, laws enacted
to enable the con®scation of the proceeds of drug traf-
®cking, and in many cases the proceeds of all serious
crimes, have withstood the challenges of consti-
tutional validity. Courts have consistently held
5
that
these laws, though draconian in nature, contain
measures which are reasonably necessary in demo-
cratic society to combat the scourge of drug tracking
and organised crime.
6
The now global applicability of the Vienna Con-
vention
7
is proof of the obligation which states have
accepted to ensure the con®scation of the proceeds
of drug tracking. To summarise, there is now
global acceptance that the struggle against drug traf-
®cking and organised crime cannot be won unless
law enforcement can con®scate the pro®ts. Despite
this global realisation, however, it still seems that
only relatively modest success is being achieved.
8
The reason for this modest success is a focus of this
paper.
There are many prosecutorial challenges to be con-
fronted in the eorts to freeze and con®scate the pro-
ceeds of transnational crime; far too many, in fact, to
be identi®ed in a single paper. The diculties will
arise from country to country and region to region.
There are, however, a number which are readily
recognised. The ®rst part of this paper seeks to analyse
these. The experience of the Cayman Islands will also
be discussed, concentrating on the learning and
insights that can be gained from some decided cases.
CONVICTION-BASED CONFISCATION:
THE MAIN OBSTACLE
One might suggest that the ®rst and most common
prosecutorial obstacle is the need to obtain a convic-
tion for the predicate oence from which the proceeds
must be shown to be derived. This requirement is still
the state of the law in most countries, including to a
large extent the Cayman Islands.
9
This remains the
general state of the law, notwithstanding the introduc-
tion in many countries of legislation which enables the
con®scation of the proceeds of all serious crimes,
10
not
only drug tracking.
Page 104
Journalof Money Laundering Control
Vol.8, No. 2, 2004, pp. 104± 114
#HenryStewart Publications
ISSN1368-5201
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