Using Civil Processes in Pursuit of Criminal Law Objectives: A Case Study of Non-Conviction-Based Asset Forfeiture

AuthorColin King
Published date01 October 2012
Date01 October 2012
DOIhttp://doi.org/10.1350/ijep.2012.16.4.411
Subject MatterArticle
ijep16-4-final.vp USING CIVIL PROCESSES IN PURSUIT OF CRIMINAL LAW OBJECTIVES
Using civil processes in
pursuit of criminal law
objectives: a case study
of non-conviction-based
asset forfeiture
By Colin King*
Centre for Criminal Justice Studies, School of Law, University of

Leeds
Abstract Conventional understanding distinguishes between criminal law (and
procedures) and civil law (and procedures). These distinctions often rest upon
differences as to the moving party, the culpability of a wrongdoer, the nature of
a wrong, the remedy available, etc. to determine whether a particular action
ought to fall upon the civil or the criminal side of the paradigmatic divide. These
distinctions, however, prove problematic in relation to hybrid systems of
justice, given legislative attempts to pursue criminal law objectives using civil
processes. Using the non-conviction-based asset forfeiture model adopted in
Ireland, and drawing upon the test adopted by the US Supreme Court as to what
distinguishes the civil from the criminal, this article examines how the Irish
judiciary has responded to this approach, ultimately contending that the courts
have failed to provide a check against the legislature circumventing enhanced
procedural protections of the criminal process and imposing punishment in the
civil forum. The article concludes by asking whether a hybrid, or middle-
ground, process, in which some enhanced procedural protections are afforded
to a person confronted with punitive civil sanctions, offers an alternative to the
rigid confines of the conventional civil/criminal dichotomy.
*
Email: C.P.King@leeds.ac.uk. I would like to thank Professor Dermot Walsh, Professor Clive
Walker, and Professor Louise Ellison for their helpful comments on previous drafts. I would also
like to acknowledge the helpful comments of the anonymous reviewer. Early forms of this article
were presented at the Institute of Criminology, University of Sydney and the Criminology Society,
University of Sheffield and I would also like to thank the participants there.
doi:10.1350/ijep.2012.16.4.411
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2012) 16 E&P 337–363
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USING CIVIL PROCESSES IN PURSUIT OF CRIMINAL LAW OBJECTIVES
Keywords Proceeds of crime; Due process; Separation of powers; Standard of
proof; Punishment
he dichotomy between civil and criminal matters is long since estab-
lished. In Atcheson v Everitt, Lord Mansfield stated: ‘Now there is no
T distinction better known, than the distinction between civil and
criminal law; or between criminal prosecutions and civil actions’.1 This
distinction is often said to rest on a number of key differences between the two
paradigms,2 namely: (1) Criminal liability can only be imposed where the
wrongdoer is subjectively culpable,3 whereas liability can be imposed in civil
actions where it is shown that the wrongdoer was objectively culpable.4 (2) The
role of a prosecution authority acting on behalf of the State is generally seen as
indicative of a criminal matter.5 Since criminal offences are regarded as matters of
public concern,6 criminal proceedings are usually instigated by the State (or its
representatives) on behalf of the public at large. Civil proceedings, in contrast, are
generally taken by private individuals, with the public interest in the act being
merely incidental. (3) As civil matters are concerned with individual interests,
they (usually) require actual damage to a specific individual before liability may be
imposed. (4) There are a number of powers afforded to State authorities in
criminal matters that are not usually available in civil proceedings. For example,
powers of arrest, detention, entry, search and seizure, to name but a few, are
generally associated with investigations into criminal activity.7 (5) These intrusive
investigatory powers are balanced by rules of evidence, at the trial stage, which are
much more restrictive in criminal proceedings than their civil counterparts.8 The
paradigmatic divide, then, is reflected in, inter alia, the different rules of
procedure, burdens of proof, rules of discovery, investigatory practices and modes
of punishment.9 (6) Criminal law achieves its aim by means of punishment (or
threatened punishment) of offenders (or potential offenders). Civil law, in
contrast, has as its purpose the restitution or compensation of a wronged party. As
Holdsworth points out, ‘a suit by a private person sounds in damages, whereas a
1
1 Cowper 382 at 391.
2
Cf. J. Hall, ‘Interrelations of Criminal Law and Torts: I’ (1943) Columbia LR 753.
3
R v G [2004] 1 AC 1034; The People (DPP) v Murray [1977] IR 360.
4
McQuire v Western Morning News Co. Ltd [1903] 2 KB 100; Hall v Brooklands Auto Racing Club [1933] 1 KB
205; Glasgow Corporation v Muir [1943] AC 448.
5
Blackstone 3 Commentaries 3.
6
J. F. Stephen, A History of the Criminal Law of England, vol. II (William S. Hein reprint: 1883) 76.
7
See, generally, D. Walsh, Criminal Procedure (Thomson Round Hall: Dublin, 2002); A. Ashworth and
M. Redmayne, The Criminal Process, 4th edn (Oxford University Press: Oxford, 2010).
8
A. S. Goldstein, ‘The State and the Accused: Balance of Advantage in Criminal Procedure’ (1960) 69
Yale LJ 1149.
9
See, e.g., P. Roberts, ‘Taking the Burden of Proof Seriously’ [1995] Crim LR 783; V. Tadros and
S. Tierney, ‘The Presumption of Innocence and the Human Rights Act’ (2004) 67 MLR 402.
338
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USING CIVIL PROCESSES IN PURSUIT OF CRIMINAL LAW OBJECTIVES
suit by the king ends in the punishment of the guilty party’.10 (7) An adverse civil
judgment does not carry the same social condemnation as does a criminal
conviction. As Stephen notes, the criminal law ‘proceeds upon the principle that it
is morally right to hate criminals, and it confirms and justifies that sentiment by
inflicting upon criminals punishments which express it’.11 For Hart, the stigma
attached to a criminal conviction is what distinguishes a person who has been
committed to a mental institution from the convict sentenced to a penal insti-
tution. Only the convict will experience ‘the moral condemnation of his
community’.12
Recent decades, however, have witnessed many jurisdictions, across the world,
seeking to pursue criminal law objectives in the civil realm through, for example,
the use of anti-social behaviour orders, serious crime prevention orders and
control orders to tackle low-level criminality and anti-social behaviour, serious
crime, and terrorism, respectively. The adoption of civil processes for crime-
control strategies is strikingly illustrated by contemporary non-conviction-based
asset forfeiture (or civil forfeiture) legislation, where an ‘accused’, facing the
prospect of being deprived of assets on the grounds that they constitute proceeds
of crime, will have to demonstrate to the court that this is not so. Failure to do so
could see those assets being forfeited to the State. This innovative procedure is
welcomed by law enforcement agencies on the grounds that it is much more
efficient and expedient than conventional (and more cumbersome) criminal
procedure.13 Critics, however, have been vociferous in proclaiming that a
non-conviction-based approach allows the State to circumvent traditional
safeguards of the criminal process.
While the debate as to due process implications of the non-conviction-based
approach has been ongoing for quite some time, there is another persistent
question regarding the use of civil remedies in pursuit of criminal law objectives,
namely what constitutional limits constrain their use?14 This article critically
appraises how the Irish model of non-conviction-based asset forfeiture has
withstood constitutional scrutiny, arguing that the Irish courts have failed to look
beyond the ‘civil’ label, thereby prioritising the legislative label over the actual
10 W. S. Holdsworth, A History of English Law, vol. II, 4th edn (Sweet & Maxwell: London, 2003) 453.
11 Stephen, above n. 6 at 81.
12 Henry M. Hart Jr, ‘The Aims of the Criminal Law’ (1958) 23 Law and Contemporary Problems 401 at 406.
13 A. Kennedy, ‘Justifying the Civil Recovery of Criminal Proceeds’ (2004) 12(1) Journal of Financial Crime
8; T. P. Farley, ‘Asset Forfeiture Reform: A Law Enforcement Response’ (1994) 39 New York Law
School LR 149.
14 M. M. Cheh, ‘Constitutional Limits on Using Civil Remedies to Achieve Criminal Law Objectives:
Understanding and Transcending the Criminal–Civil Law Distinction’ (1991) 42(5) Hastings LJ
1325.
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USING CIVIL PROCESSES IN PURSUIT OF CRIMINAL LAW OBJECTIVES
substance of the Proceeds of Crime Acts 1996–2005 and thus facilitating the use of
civil processes as a crime-control strategy. Indeed, the imposition of civil sanctions
that are functionally equivalent to the criminal sanction undermines the exclu-
sivity of the criminal sanction.15
The Irish regime offers a wealth of information for policymakers, practitioners
and scholars alike. Yet, while there has been discussion of the adoption of the
non-conviction-based approach, as well as theoretical and comparative exami-
nation of the Irish model of non-conviction-based asset forfeiture,16 analysis of
the Irish model remains relatively underdeveloped.17 This article aims to take
one step in furthering knowledge of non-conviction-based asset forfeiture by
focusing on how the Irish judiciary have responded to this radical new weapon
in
the
armoury
of
the
State.18
It
will
be
demonstrated
that
the
...

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