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Civil forfeiture and Article 6 of the ECHR: due process implications for England & Wales and Ireland

Published online by Cambridge University Press:  02 January 2018

Colin King
Colin King*
Affiliation:
University of Manchester
*
Dr Colin King, School of Law, University of Manchester, Williamson Building, Oxford Road, Manchester M13 9PL, UK. Email: [email protected]
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Abstract

Civil forfeiture is playing an increasingly prominent role in the fight against organised crime. While this tool is attractive to law enforcement agencies, it does give rise to concerns under Art 6 of the ECHR. Such proceedings ought to attract the full range of enhanced procedural protections inherent in the criminal process. Even if the Strasbourg Court decides otherwise, there is an argument that the presumption of innocence ought to apply where civil forfeiture proceedings are instituted against a person subsequent to that person being acquitted in criminal proceedings. The Strasbourg jurisprudence, though, is permeated by confusion and inconsistency, which does not inspire confidence that the rights of the individual will be protected. The final section of this paper, then, considers whether civil forfeiture represents a proportionate response in the fight against organised crime. Ultimately, though, given lack of information on such crime, we cannot provide an answer either way – what can be said, though, is that civil forfeiture has had a significant impact on the rights of the individual.

Type
Research Article
Information
Legal Studies , Volume 34 , Issue 3 , September 2014 , pp. 371 - 394
Copyright
Copyright © Society of Legal Scholars 2014

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Footnotes

*

I would like to thank Professor Clive Walker, Professor Dermot Walsh, Professor Louise Ellison and Dr Carole McCartney for their helpful comments on a previous draft.

References

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2. See eg the Proceeds of Crime Act 2002, as amended (UK) and the Proceeds of Crime Acts 1996–2005 (Ireland).

3. See eg C King ‘Using civil processes in pursuit of criminal law objectives: a case study of non-conviction-based asset forfeiture’ (2012) E+P 337; Campbell, L ‘The recovery of “criminal” assets in New Zealand, Ireland and England: fighting organised and serious crime in the civil realm’ (2010) VUW L Rev 15;Google Scholar Young, S (ed) Civil Forfeiture of Criminal Property: Legal Measures for Targeting the Proceeds of Crime (Cheltenham: Edward Elgar, 2009).CrossRefGoogle Scholar

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20. Naylor, above 1, at 41.

21. Ibid.

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24. Performance and Innovation Unit, above 1, para 3.1.

25. Ibid, para 3.6.

26. Ibid, para 3.7.

27. Engel v Netherlands (no. 1) [1979–1980] 1 EHRR 647, paras 82, 83. For a critique of these criteria, see the dissenting opinion of Judge de Meyer in Putz v Austria [2001] 32 EHRR 13. These criteria were applied in relation to the Proceeds of Crime Act 2002 in Re Walsh [2004] NIQB 21, and this approach was approved in R (Director of the Assets Recovery Agency) v He and Chen [2004] EWHC 3021 (Admin).

28. Engel v Netherlands (no. 1), above 27, para 79.

29. Ibid, para 85.

30. Ibid.

31. AP, MP and TP v Switzerland [1998] 26 EHRR 541, para 40. Cf Demicoli v Malta [1992] 14 EHRR 47; Ravnsborg v Sweden [1994] 18 EHRR 38; Garyfallou AEBE v Greece [1999] 28 EHRR 344; Kadubec v Slovakia [2001] 33 EHRR 41; Västberga Taxi Aktiebolag and Vulic v Sweden, App. No. 36985/97, 21 May 2003.

32. Weber v Switzerland [1990]12 EHRR 508; Ravnsborg v Sweden, above 31; Garyfallou AEBE v Greece, above 31. The absence of imprisonment in lieu is not, however, decisive. Västberga Taxi Aktiebolag and Vulic v Sweden, above 31.

33. Campbell and Fell v UK [1985] 7 EHRR 165 (violation of Art 6).

34. Demicoli v Malta, above 31 (violation of Art 6).

35. Bendenoun v France [1994] 18 EHRR 54 (no violation of Art 6); Västberga Taxi Aktiebolag and Vulic v Sweden, above 31 (violation of Art 6).

36. Schmautzer v Austria [1996] 21 EHRR 511 (violation of Art 6).

37. Findlay v UK [1997] 24 EHRR 221 (violation of Art 6).

38. Pierre-Bloch v France [1998] 26 EHRR 202 (Art 6 not applicable).

39. Malige v France [1999] 28 EHRR 578 (no violation of Art 6).

40. Kadubec v Slovakia, above 31 (violation of Art 6).

41. Lutz v Germany [1988] 10 EHRR 182 (no violation of Art 6); Garyfallou AEBE v Greece, above 31 (violation of Art 6); Lauko v Slovakia [2001] 33 EHRR 40 (violation of Art 6).

42. The focus on punitiveness, as a distinguishing feature between what is civil and what is criminal, is open to criticism, however. Cf Trechsel, S Human Rights in Criminal Proceedings (New York: Oxford University Press, 2005) p27;Google Scholar Cheh, MM ‘Constitutional limits on using civil remedies to achieve criminal law objectives: understanding and transcending the criminal–civil law distinction’ (1991) Hastings L J 1325, 1356.Google Scholar

43. [1984] 6 EHRR 409.

44. Ibid, para 53. In Benham v UK [1996] 22 EHRR 293, para 56, one factor taken into account by the Court was that the proceedings had some punitive elements, such as a requirement of wilful refusal or of culpable neglect before a person could be committed to prison.

45. [1984] 6 EHRR 409, para 53. In both Bendenoun v France, above 35, para 47 and Västberga Taxi Aktiebolag and Vulic v Sweden, above 31, para 79, tax surcharges were said to serve both deterrent and punitive purposes. Cf AP, MP and TP v Switzerland, above 31, para 41. In Malige v France, above 39, para 39, although the imposition of penalty points for a driving offence was said to have a preventive character, it also had a punitive and deterrent effect and, as such, was akin to a secondary penalty. In Lauko v Slovakia , above 41, para 58, the Court, rejecting the contention that a minor offence was preventive and educational, found that it served both deterrent and punitive purposes. In Kadubec v Slovakia, above 31, para 52, the imposition of a fine and an order to pay costs of proceedings was found to serve a deterrent and punitive purpose. In contrast, see Pierre-Bloch v France, above 38, paras 56, 57, where the forfeiture of a parliamentary seat and disqualification from standing for election for a period of 1 year was held not to be a criminal sanction.

46. [2004] 39 EHRR 1.

47. Ibid, para 102. Cf Janosevic v Sweden [2004] 38 EHRR 22, para 68.

48. See eg Gale v Serious Organised Crime Agency, above 7.

49. See eg Murphy v GM, PB, PC Ltd [1998] IEHC 5.

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55. These are £10,000 and €13,000, respectively.

56. This paper is only concerned with civil forfeiture, and deliberately does not engage with the substantial body of jurisprudence concerned with post-conviction forfeiture and the ECHR. See eg Phillips v UK, App. No. 41087/98, 5 July 2001; Welch v UK [1995] 20 EHRR 247.

57. M v Italy App. No. 12386/86, 15 April 1991.

58. Our concern here is only with the issue of confiscation. It is worth mentioning that the terms ‘confiscation’ and ‘forfeiture’ are often, erroneously, used interchangeably. For the sake of consistency, this paper retains the use of ‘confiscation’ and ‘forfeiture’ as used by the courts in their relevant judgments. Cf Profits of Crime and Their Recovery: Report of a Committee Chaired by Sir Derek Hodgson (London: Heinemann, 1984).

59. M v Italy, above 57, at 95.

60. Ibid, at 97.

61. We will consider the presumption of innocence under Art 6(2) in more detail in the next section.

62. M v Italy, above 57, at 97.

63. Ibid, at 98.

64. Cf Naylor, above 1, at 41. In the next section, we will consider allegations of criminal wrongdoing in civil proceedings.

65. M v Italy, above 57, at 98.

66. Ibid.

67. Air Canada v UK [1995] 20 EHRR 150.

68. The Strasbourg Court was concerned with both property rights and the right to a fair trial. This paper confines itself to Art 6 issues.

69. Cf Lauko v Slovakia, above 41.

70. Air Canada v UK, above 67, at para 6 of his dissenting judgment.

71. Ibid, at para 1 of his dissenting judgment.

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74. Ashworth, above 73.

75. See eg Bochan v Ukraine App. No. 7577/02, 3 May 2007.

76. See n 51 and associated text.

77. Hart, Hm Jr ‘The aims of the criminal law’ (1958) 23 Law & Contemp Probs 401, 406. See egCrossRefGoogle Scholar ‘Gilligan loses assets challenge’ Irish times 20 December 2011; ‘Cab secures order freezing €4.6m in bank accounts of alleged fraudster’ Irish times 22 December 2011.

78. Bochan v Ukraine, above 75, para 78; Lutz v Germany, above 41, para 60.

79. [2011] UKSC 49.

80. [1994] 17 EHRR 221.

81. Ibid, para 13.

82. Ibid, para 30.

83. Leutscher v Netherlands [1997] 24 EHRR 181.

84. Ibid, para 14.

85. Ibid, para 31.

86. [2001] 33 EHRR 56.

87. Ibid, para 31.

88. Kitai, R ‘Protecting the guilty’ (2002–2003) Buff Crim L Rev 1163.Google Scholar

89. It is significant that after failing to secure a criminal conviction, it is the state that initiates civil forfeiture proceedings. That is very different to, for example, a situation in which an alleged victim initiates proceedings for compensation. We shall return to this in due course.

90. [2005] 41 EHRR 7.

91. Ibid, para 13.

92. Ibid, para 41. This is important in relation to whether civil forfeiture ought to be regarded as a ‘criminal’ measure – see above.

93. Ibid, para 42.

94. Cf Moullet v France App. No. 27521/04, 13 September 2007.

95. Mahmutaj, K ‘Cash forfeiture following acquittal: an “affront to public perception” or a breach of a fundamental human right?’ (2009) Crim L Rev 783, 792.Google Scholar

96. Ringvold v Norway App. No. 34964/97, 11 February 2003.

97. Ibid, para 19.

98. Kadubec v Slovakia, above 31.

99. The obvious answer would appear to be that, in Ringvold, the civil proceedings were not a consequence and the concomitant of the criminal proceedings, more on which later.

100. Ringvold v Norway, above 96, dissenting opinion of Costa J.

101. Ibid, dissenting opinion of Costa J.

102. App. No. 30287/96, 11 February 2003.

103. This case might then be seen as analogous to the situation in both Sekanina and Rushiti.

104. App. No. 30287/96, above 101, para 46.

105. Ibid, para 47.

106. Ibid, para 48.

107. Gale v Serious Organised Crime Agency, above 7, para 19.

108. See eg Moullet v France, above 94, ‘1. General principles established under the Court's case-law’.

109. Leutscher v Netherlands, above 83.

110. Ringvold v Norway, above 96.

111. Moullet v France, above 94.

112. HK v Finland App. No. 36065/97, 26 September 2006.

113. Civil proceedings have more relaxed rules governing the admissibility of evidence, so that evidence that might have been excluded at the criminal trial might well be admitted in civil forfeiture proceedings. Where, however, civil forfeiture proceedings are initiated based upon the same allegations that formed the basis of the criminal trial, the state is getting a second bite of the cherry by pursuing criminal law objectives in the civil arena.

114. Even acknowledging the reduced standard of proof and the relaxed rules governing admissibility of evidence. In Coffey v United States, it was held that an acquittal in criminal proceedings was a bar to a subsequent attempt to seek forfeiture of property arising from the same act. According to Blatchford, J, ‘There could be no new trial of the criminal prosecution after the acquittal in it, and a subsequent trial of the civil suit amounts to substantially the same thing, with a difference only in the consequences following a judgment adverse to the claimant.’ 116 US 436 (1886)443. Note, though, that Coffey was distinguished inGoogle Scholar Helvering v Mitchell 303 US 391 (1938) and disapproved in US v 89 Firearms 465 US 354 (1984). Cf One Lot Emerald Cut Stones v US 409 US 232 (1972).

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116. [1988] 13 EHRR 379, para 28.

117. Ibid.

118. [2004] 38 EHRR 22, para 101. This can be seen in relation to post-conviction confiscation in HM Advocate v McIntosh [2001] UKPC D1, though it is significant that there the respondent had been convicted of drug trafficking offences.

119. Cf Air Canada v UK, above 67.

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122. M v Italy, above 57, at 101.

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125. Air Canada v UK, above 67.

126. Ibid, para 32.

127. Ibid, para 33.

128. Ibid, para 34.

129. Interestingly, in an earlier case, the UK government ‘conceded that as a practical matter, where a person is free of any fault which could relate in any way to the purpose of the legislation, it is likely that the forfeiture of that property could not on any sensible construction of the legislation further the object thereof’. Agosi v UK [1987] 9 EHRR 1, para 53.

130. Air Canada v UK, above 67, paras 41, 42.

131. Kostovski v Netherlands [1990] 12 EHRR 434, para 44.

132. [2003] UKHL 28, para 53.

133. Cf Agosi v UK, above 129; Air Canada v UK, above 67.

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138. Performance and Innovation Unit, above 1, Box 2.2.

139. Ibid, Box 3.1.

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143. Dáil Éireann, Private Members' Business – Organised Crime (Restraint and Disposal of Illicit Assets) Bill 1996, Second Stage, 2 July 1996, vol 467, col 2442, per Deputy Shatter.

144. Seanad Éireann, Proceeds of Crime Bill 1996, Second Stage, 26 July 1996, vol 148, col 1377, per Senator Neville.

145. Seanad Éireann, Criminal Assets Bureau Bill 1996, Second Stage, 9 October 1996, vol 148, col 1547, per Senator Mulcahy.

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