How far is too far? Theorising non-conviction-based asset forfeiture

Hendry, Jennifer; King, Colin

doi:10.1017/s1744552315000269

Cited by 10 publications

(7 citation statements)

References 45 publications

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“…Nicola Sharp stressed CRO is a simpler alternative to seeking a conviction and then looking to recover assets when the case does not meet the criteria for prosecution (Nicola, 2020). Jennifer Hendry and Colin King opined that the CRO is implemented due to the criminal law's perceived 'failure' in tackling organised crime to target financial assets arising from illegal activities (Hendry & King, 2015). Justine Wadhera observed the difficulty in bringing civil recovery proceedings where there was not much information about an individual's wealth source, which resulted in the creation of the UWO (Wadhera, 2020).…”

Section: Literature Reviewmentioning

confidence: 99%

Recovery of Corrupt Assets via Unexplained Wealth Order

Raof

Aziz

Raof³

2021

E-BPJ

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The Unexplained Wealth Order in the United Kingdom allows the confiscation of corruptions' assets without conviction. The burden of proof lies on the asset owner to prove its legitimate source. This study addresses the applicability of the Unexplained Wealth Order in Malaysia. A qualitative methodology based on doctrinal study supported by an opinion of an academician in the United Kingdom is adopted. Analysis of the Unexplained Wealth Order is required as part of civil means to recover the proceeds of corruption in Malaysia. The study may assist the stakeholders in Malaysia in understanding the concept of the Unexplained Wealth Order. Keywords: corruption; civil mechanism; proceeds of corruption; recovery of assets eISSN: 2398-4287© 2021. The Authors. Published for AMER ABRA cE-Bs by e-International Publishing House, Ltd., UK. This is an open access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/by-nc-nd/4.0/). Peer–review under responsibility of AMER (Association of Malaysian Environment-Behaviour Researchers), ABRA (Association of Behavioural Researchers on Asians/Africans/Arabians) and cE-Bs (Centre for Environment-Behaviour Studies), Faculty of Architecture, Planning & Surveying, Universiti Teknologi MARA, Malaysia. DOI: https://doi.org/10.21834/ebpj.v6i17.2828

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Section: Literature Reviewmentioning

confidence: 99%

Recovery of Corrupt Assets via Unexplained Wealth Order

Raof

Aziz

Raof³

2021

E-BPJ

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“…First, serious crime(s) offenders gladly serve their jail terms knowing that upon release their proceeds from crime would be awaiting them. As such, the deterrent effects of the conventional criminal laws are not sufficient, to the extent that offenders eventually enjoy these illegal proceeds (National Director of Public Prosecutions v Meir Elran [2013] (1) SACR 429 [CC]; Kennedy, 2004;Hendry and King, 2015). Second, the use of the internet, electronic means of communication and a sophisticated international banking system enables criminals to distance themselves from the face of the crime.…”

Section: The Rationale For Asset Forfeiturementioning

confidence: 99%

Assessment of asset forfeiture in targeting Somali piracy ransoms

Gikonyo

2018

JMLC

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Purpose The purpose of this paper is to consider the applicability and challenges of using asset forfeiture mechanisms in taking away the illicit gains of Somali piracy for ransoms. Design/methodology/approach The paper presents a desk research on the issue. It is based on analysis of the key principles in the area and relevant literature on the subject. Findings Asset forfeiture mechanisms can be used to facilitate the seizure of Somali piracy proceeds. It is applicable to those who directly or indirectly benefited from piracy: the foot soldiers, financiers and other beneficiaries. This would enable withdrawal of piracy re-investment capital and hence may act as a disincentive for current and prospective offenders. Research limitations/implications For the initiative to work, various states and other actors need to cooperate. However, incentives such as corruption, the personal interests of individuals and states that have benefited from Somali piracy, may make them unwilling to collaborate. This would definitely hinder the implementation and effectiveness of using asset forfeiture. Originality/value Much of the literature on Somali piracy for ransoms has focussed on maritime solutions. Further, authors and organisations have advocated for following the money trail. As a result, consideration of the benefits and challenges of doing so needs to be done. This paper seeks to fill this gap.

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“…This alleged failure of law, this apparently continuing disappointment of its normative expectation over time, was what gave rise to these wholesale procedural changes. In its adoption of such a hybrid approach, we see the supposed failure of law being concretised through procedure (Hendry and King 2015).…”

Section: Civil Recovery and Poca 2002mentioning

confidence: 99%

“…This very issue is the second normative dimension of this analysis, namely the tension created by the juxtaposition of the realisation of the stated policy goals (see Performance and Innovation Unit 2000) with the requirements of due process, or, rather, the apparent conflict between the goals of controlling high-level, high-value criminal activity and ensuring the adequate observance of the alleged perpetrator's civil and political rights (Ivory 2014). This paper submits that, in their effective bypassing of enhanced procedural protections, this hybrid measure is contrary to the rule of law and thus lacking in necessary legitimacy (on the point that the legislative remedy of civil recovery has gone too far in its attempt to remedy an existing inadequacy in the law, see Hendry and King 2015). Although this critique may appear prima facie to be a legal-theoretical one, it is important to note that this opens civil recovery up to challenge on the grounds that it violates due process rights that are inherent in the criminal process.…”

Section: Introductionmentioning

confidence: 99%

Expediency, Legitimacy, and the Rule of Law: A Systems Perspective on Civil/Criminal Procedural Hybrids

Hendry

King

2016

Criminal Law, Philosophy

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In recent years an increasing quantity of UK legislation has introduced blended or 'hybridised' procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the enhanced procedural protections of the criminal law. By conceptualising the rule of law as a structural coupling between the political and legal systems, and due process rights as necessary and self-imposed limitations upon systemic operations, this paper employs a systems-theoretical approach to critique this balancing act between expediency and principle, and queries the circumstances under which legislation contravening the rule of law can be said to lack legitimacy. Keywords Systems theory Á Autopoiesis Á Expediency Á Legitimacy Á Rule of law Á Due process Á Civil and criminal procedure Á Procedural hybrids Á Proceeds of crime Á Civil recovery And that is exactly why the legitimacy of law is questioned time and again-acutely or hopelessly, out of frustration or anger, full of value-perspectives that are beside the point for law. Niklas Luhmann (2004: 261) No good society can be unprincipled; and no viable society can be principle-ridden… Our democratic system of government exists in this Lincolnian tension between principle and expediency.

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How far is too far? Theorising non-conviction-based asset forfeiture

Cited by 10 publications

References 45 publications

Recovery of Corrupt Assets via Unexplained Wealth Order

Recovery of Corrupt Assets via Unexplained Wealth Order

Assessment of asset forfeiture in targeting Somali piracy ransoms

Expediency, Legitimacy, and the Rule of Law: A Systems Perspective on Civil/Criminal Procedural Hybrids

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