Theorising Asset Forfeiture in Ireland

AuthorLiz Campbell
DOI10.1350/jcla.2007.71.5.441
Published date01 October 2007
Date01 October 2007
Subject MatterArticle
Theorising Asset Forfeiture in
Ireland
Liz Campbell*
Abstract Various alterations to the Irish legal system have been effected in
a bid to counter organised crime, the most radical of which was the
introduction of civil forfeiture in 1996. This article examines the forfeiture
process carried out by the Criminal Assets Bureau and seeks to analyse
it from a theoretical perspective. Civil forfeiture may be regarded as
embodying a move away from due process towards crime control, given
the avoidance of traditional protections in the criminal process by its
location in the civil realm. Moreover, the process may be characterised as
an ‘apersonal means of tackling crime’, in which emphasis is laid on the
non-moral and regulatory aspects of the law. This article further contends
that civil forfeiture represents an adaptation to reality in which the State
reconfigures the legislative framework so as to facilitate more readily the
suppression of organised crime.
The phenomenon of crime is a fundamental and ineluctable concern in
contemporary Ireland, as it is in all late-modern Western societies, and
its avoidance and prevention represents a pivotal organising factor in
day-to-day life. The centrality of crime in Ireland in 2007 may be
explained primarily by reference to the exponential increase in crime
rates in the last number of decades: while crime rates reached unpreced-
ented levels in the last 20 years, they have not diverged in any sub-
stantial sense from that position in recent times and remain at relatively
stable levels.1Moreover, notwithstanding any fluctuations in statistics,
the general popular impression is that the problem of crime is an ever-
worsening one.
In particular, the 1990s in Ireland heralded an unprecedented wave
of concern about serious and organised crime, with a concomitant surge
of legislative action. The notable rise in ‘gangland’ killings in that
decade, which are characterised by their planned nature and the use
of firearms,2coupled with the low conviction rate for such crimes,3
* BCL, LLM (NUI), PhD candidate, University College Cork and lecturer in law,
University of Aberdeen; e-mail: liz.campbell@abdn.ac.uk. I would like to thank Dr
Shane Kilcommins for his helpful comments on this article. This article is based on
a paper presented at the 2006 Annual Conference of the Socio-Legal Studies
Association, University of Stirling, Scotland, 28–30 March 2006.
1 For a useful compilation of crime statistics in Ireland see I. O’Donnell,
E. O’Sullivan, and D. Healy (eds) Crime and Punishment in Ireland, 1922 to 2003: A
Statistical Sourcebook (Institute of Public Administration: Dublin, 2005).
2 While from 1972 to 1991 18.9 per cent of homicides in Ireland were committed
with a firearm, this figure increased to 27.3 per cent in the period between 1992
and 1996. See E. Dooley, Homicide in Ireland 1972–1991 (Stationery Office: Dublin,
1995) 26; E. Dooley, Homicide in Ireland 1992–1996 (Stationery Office: Dublin,
2001) 15, table 10.
3 In Dooley’s study of homicides from 1992 to 1996, there was a 20 per cent
conviction rate (all for murder) for the homicides which were related to gangland/
organised crime, in comparison with 57.6 per cent for the study as a whole: above
n. 2 at 16–17, table 12.
441
precipitated a widespread belief that organised criminals were evading
justice.4Furthermore, a pervasive sentiment that considerable wealth
was being accrued and enjoyed by a number of notorious criminals, and
that the State was impotent in this regard, took root. These popular and
political perceptions gathered momentum during the early 1990s, until
action was fomented in 1996 as a result of two high-prole murders.
Sustained outcry about organised crime in Ireland came in June 1996
in the wake of the murders of Garda Jerry McCabe in the course of an
armed robbery, and of investigative journalist Veronica Guerin. These
murders expedited the introduction of a number of legislative measures
that signicantly enhanced the capabilities of the State, and fundament-
ally revised its strategy in tackling organised criminality. Popular and
political will converged in a desire to undermine the power of the
overlords5and godfathers6of organised crime, and to recoup their
assets. As one member of the Dáil (legislature) insisted, if we as a
community [are] prepared to tolerate the continued unhindered exist-
ence in our midst of people who have accumulated vast and un-
explained wealth . . . Veronica Guerin died in vain.7
Following these two murders, a series of legislative provisions was
introduced in a bid to further the States ability to prosecute and control
organised crime. For example, the Criminal Justice (Drug Trafcking)
Act 1996, which facilitates the detention of suspected drug-trafckers
for seven days,8and which allows inferences to be drawn from the
failure of accused to mention in police interview particular facts on
which he later seeks to rely in court,9was enacted. In addition, the
Proceeds of Crime Act 1996, which provides for a mechanism of civil
asset forfeiture that is implemented by the Criminal Assets Bureau
(CAB),10 was introduced. Remarkably, this Act was passed within a mere
ve weeks, in marked contrast with the generally slow legislative pro-
cess in Ireland.11 Indeed, such expedition may stem from the perceived
importance of such a mechanism: prior to its enactment it was claimed
that the Proceeds of Crime Bill was necessary to protect democracy.12
While the workings of the Criminal Assets Bureau and the notion of
asset forfeiture in Ireland have been examined previously,13 this article
seeks to expand on the extant literature by exploring this mechanism
4 Ibid. at 15, table 10.
5Dáil Debates, 2 July 1996, vol. 467, col. 2473, per Mr ODea TD.
6Dáil Debates, 3 July 1996, vol. 468, col. 376, per Mr Haughey TD.
7Dáil Debates, above n. 5, col. 2406, per Mr ODonoghue TD.
8 Criminal Justice (Drug Trafcking) Act 1996, s. 2.
9 Criminal Justice (Drug Trafcking) Act 1996, s. 7.
10 Criminal Assets Bureau Act 1996.
11 The Proceeds of Crime Act 1996 was rst proposed by Fianna Fáil as a Private
Members Bill in the week following Veronica Guerins murder, and arguably
indicated Fianna Fáils assumption of the mantle of the law and order party,
heralding an increase in the politicisation of law and order in Ireland. See
I. ODonnell and E. OSullivan, The Politics of IntoleranceIrish Style (2003) 43
British Journal of Criminology 41.
12 Dáil Debates, 2 July 1996, vol. 467, col. 2409, per Mr ODonoghue TD.
13 See J. Meade, The Proceeds of Crime Act, 1996: An Overview (1998) Irish Law
Times 52; P. McCutcheon and D. Walsh, The Conscation of Criminal Assets: Law and
Procedure (Round Hall Sweet & Maxwell: Dublin, 1999); P. McCutcheon and
The Journal of Criminal Law
442

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