Using confiscated money
| DOI | https://doi.org/10.1108/13685200310809662 |
| Pages | 344-354 |
| Published date | 01 October 2003 |
| Date | 01 October 2003 |
| Author | Daniel P. Murphy |
| Subject Matter | Accounting & finance |
Journal of Money Laundering Control Ð Vol. 6 No. 4
Using Con®scated Money
Daniel P. Murphy
`The investigation, prosecution and suppression of
crime for the protection of the citizens and the
maintenance of peace and public order is an impor-
tant goal of all organized societies. The pursuit of
that goal cannot realistically be con®ned within
national boundaries. This has long been the case,
but it is increasingly evident today. Modern com-
munications have shrunk the world and made
McLuhan's global village a reality. The only
respect paid by the international criminal com-
munity to national boundaries is when these
serve as a means to frustrate the eorts of law
enforcement and judicial authorities.'
1
INTRODUCTION
The dicta set out above, borrowed from Justice
LaForest, concerned an international drug smuggler
and an extradition request from the USA. The
excerpt has been selected to illustrate the modern
reality of transnational crime. The world has
shrunk. A variety of factors, including the interna-
tional banking community, the Internet and the
widespread access to ®nancial expertise operate to
allow criminals, from drug trackers to sophisticated
white colour criminals, to use national borders to
defeat national and international criminal investiga-
tions and prosecution. This reality is re¯ected in
Recommendations 38 and 39 of the Financial
Action Task Force's (FATF) 40 Recommendations.
They provide that:
`38. There should be authority to take expeditious
action in response to requests by foreign countries
to identify, freeze, seize and con®scate proceeds or
other property of corresponding value to such pro-
ceeds, based on money laundering or the crimes
underlying the laundering activity. There should
also be arrangements for coordinating seizure and
con®scation proceedings which may include the
sharing of con®scated assets.
39. To avoid con¯icts of jurisdiction, considera-
tion should be given to devising and applying
mechanisms for determining the best venue for
prosecution of defendants in the interests of justice
in cases that are subject to prosecution in more than
one country. Similarly, there should be arrange-
ments for coordinating seizure and con®scation
proceedings which may include the sharing of con-
®scated assets.'
It is interesting to note that the FATF Recommenda-
tions speak in terms of state-to-state cooperation and
the potential for sharing between states. Some nations
have quickly adopted an approach that provides for
international sharing between states.
2
The more
interesting issue is how states cooperate to com-
pensate victims of crime out of con®scated assets. In
January 2001 the General Assembly of the United
Nations adopted the Transnational Organized
Crime Convention (TOC). The TOC is a good
genesis for better international cooperation but it
depends on the perception that a group of criminals
is more signi®cant than a single organised criminal.
No one would seriously challenge the concern
posed by three or more individuals in an organised
crime group. On the other hand there is an equally
signi®cant problem with a single criminal. An indivi-
dual experienced in fraud, computer hacking or other
®nancially remunerative crime, who is organised to
such a degree that he or she can eectively use the
world's ®nancial markets to hide their criminal
wealth from their victims, is a signi®cant problem.
Any organised crime group or organised criminal
can and will use national borders to their advantage.
It makes them judgment proof against civil judg-
ments and relatively immune from criminal process.
In this paper that issue will be examined. The scope
of relevant international conventions will be consid-
ered. Canada's approach to the problem will be
looked at. Some options will be suggested and, hope-
fully, leave the reader with a better appreciation of
the limited scope of con®scated assets and their
availability to compensate victims of crime.
INTERNATIONAL EXPECTATIONS
In a perfect world every state would fully comply
with every convention and the emerging eorts
against money laundering. The sad fact is such uni-
formity is an uncertain goal. Some of these eorts
Page 344
Journalof Money Laundering Control
Vol.6, No. 4, 2003, pp. 344± 354
#HenryStewart Publications
ISSN1368-5201
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