The civil law: a potent crime-fighting device
| DOI | https://doi.org/10.1108/JMLC-11-2013-0042 |
| Pages | 4-16 |
| Date | 07 January 2014 |
| Published date | 07 January 2014 |
| Author | Shazeeda Ali |
| Subject Matter | Accounting & Finance,Financial risk/company failure,Financial compliance/regulation |
The civil law:
a potent crime-fighting device
Shazeeda Ali
Faculty of Law, UWI, Mona, Jamaica
Abstract
Purpose – The purpose of this paper is to increase the awareness of attorneys-at-law about the
potential risks that they may encounter as a result of the developments in “intermeddler liability”.
The article is also aimed at informing attorneys about the Proceeds of Crime Act (POCA) civil recovery
machinery.
Design/methodology/approach – The article is divided into two parts. The first part involves an
analysis of the provisions in the POCA of Jamaica that invoke a civil machinery to recover criminally
obtained wealth. In addition to a review of the main provisions of POCA, an examination of recent
cases in Jamaica and in the UK, which has a similar legislative regime, has been undertaken.
The legislative framework for providing a remedy to a victim of crime has also been examined.
The second part of the article explores developments in the law of restitution and the law relating to
constructive trusts which may impact lawyers and financial intermediaries who become engaged in
transactions dealing with illicit funds.
Findings – The first aspect of the article focuses on the ability of the Asset Recovery Agency to
follow and recover illicitly obtained property in the absence of a criminal conviction. In the second part
of the article, the evolution of the law relating to “intermeddler liability”, that is, knowing receipt and
dishonest assistance, has been explored. It is observed that these developments are significant in
providing a victim of financial crime with a remedy where the illicit activity involves a breach of trust
or other fiduciary relationship.
Originality/value – Much of the focus on anti-money laundering initiatives in Jamaica is on the
money laundering offence and post-conviction orders under POCA. This article seeks to highlight the
power of the civil law in countering serious crime.
Keywords Civil recovery,Cash forfeiture, Dishonest assistance,Jamaica, Knowing receipt,
Proceeds of Crime Act
Paper type Technical paper
Introduction
When one thinks about controlling illicit behaviour, it is the criminal law that comes to
mind, since its objectives include both punishment and deterrence. Yet, the civil law,
through its asset recovery mechanisms, may actually provide a more powerfu l weapon
against crime. At the same time, unlike the criminal law, the civil law is instrumental in
providing a remedy for victims of financial crimes.
The multi-faceted approach that may be taken under the civil law should be of
concern to professionals, such as lawyers and financial intermediaries, who may
become involved in the proceeds of crime. As will be shown, it is these measures that
represent a real risk of liability for anyone involved in the business of handling other
people’s money.
The current issue and full text archive of this journal is available at
www.emeraldinsight.com/1368-5201.htm
This article is based on a paper presented by the author at the Mona Law Series at the Faculty
of Law, UWI, Mona, Jamaica on April 11, 2013.
Journal of Money Laundering Control
Vol. 17 No. 1, 2014
pp. 4-16
qEmerald Group Publishing Limited
1368-5201
DOI 10.1108/JMLC-11-2013-0042
JMLC
17,1
4
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