Proceeds of crime

Two broad approaches towards confiscating the proceeds of crime have developed since the conception of using confiscation as a response to acquisitive crime—the punitive approach and the deprivatory approach. The Hodgson Committee in 1984 intended asset confiscation to operate in a deprivatory manner. However, the asset confiscation regime which has emerged in the UK is manifestly punitive in certain respects. This is because the legislative framework artificially inflates the amount of collectible assets in the quantification of criminal benefit and the courts have developed an unrealistic approach towards calculating the available amount. Fifteen years after the Proceeds of Crime Act 2002 was enacted, the confiscation regime is proving ineffective. In 2016, £1.9 billion remained uncollected. The solution lies in a return to a more realistic conception of the confiscation regime as a deprivatory rather than a punitive approach to acquisitive crime.

Civil forfeiture is a modern crime control instrument that targets property linked to criminal activity.  A recent addition to the State’s crime control toolbox, the development of civil forfeiture in Ireland and in Canada shows remarkable resistance to the idea that standard criminal justice safeguards govern the forfeiture process. The stark parallels in these two jurisdictions demonstrate tacit acceptance of a strategy that proves perilous to long-held procedural and substantive rights.  By deftly shifting to formally civil instruments, Ireland and Canada have organized an assault on crime that circumvents the conventional criminal law, arguably seriously abrogating rights and procedural justice.

Keywords: proceeds of crime; organized crime; standard of proof; due process; criminal law; property rights; proportionality

The present article deals with the application of the net worth method in the financial crime case study of John and Gayle Fawn. The UK Crown Prosecution Serviceaccuses the defendants of having committed offences against the Proceeds of Crime Act 2002in the period 2012/13-2014/15.Under the net worth method, the assets less liabilities (net worth) and the personal expenditure of the defendants are compared to their reported income during the period of investigation. In case the net worth and personal expenditure exceed the reported income and cannot be accounted for by previous savings, indirect evidence is provided that the defendants must have obtained unreported income. The case
study shows that the increase in net worth and private spending of John and Gayle Fawn can be accounted for by undisclosed savings fromprevious employment income of John Fawn and by reported income for the year 2012/2013. This cannot be shown for the years 2013/14 and 2014/15, which constitutes a financing gap. Based on evidence and calculations, it can be demonstrated that in 2013/14 and 2014/15 the defendants covered the financing gap of £143.434,04 and £196,297.60, respectively, by unreported commission income in the range of £135,000.00-£216,000.00 per year. It can be concluded, that the defendants have been able to account for the net worth increase and
private spending with unreported income in the calculated range in 2013/14 and 2014/15.

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.

It is a notorious fact that professional and habitual criminals frequently take steps to conceal their profits from crime. Effective but fair powers of confiscating the proceeds of crime are therefore essential.
Lord Steyn 
The Act was enacted to provide for the forfeiture or confiscation of the proceeds of certain crimes and for connected or related matters. This short and a brief paper intend to explain the applicability of the Act in Tanzania. The term proceeds of crime is the term given to money or assets gained by criminals during the course of their criminal activity.  The aim here is to set out the law in relation to the recovery of assets with criminal being the most commonly used power. Confiscation usually occurs after a conviction has taken place. 
As I said earlier that a criminal cannot be benefit from any assets or money obtained from his/her criminal activities. So the Act intends to deprive and close the loophole that a criminal may use his/her assets after being found guilty of an offence. There is this saying that, “a person cannot be benefit from his/her own wrong”. In this case, the Act intends to show the society that commission of crime do not pay. Therefore, once you commit a crime which involves the accumulation of any assets including money or property, then you cannot be benefit from the wrong doing on such accumulation of assets, and therefore any properties resulting from criminal activities of serious or specified offenses cannot remain in the offender’s possession or ownership.
Properties derived from criminal proceeds are properties acquired as the fruit of criminal proceeds, or properties acquired as returns on criminal proceeds or properties acquired as returns on these properties and properties acquired from the possession or disposal of criminal proceeds.
Therefore, this short paper tries to show how the Proceeds of Crime Act, [Cap.256] of 2007 works particularly on its amendments of 2007 and 2012, and for the purpose of this paper, the term Act shall mean the Proceeds of Crime Act, [Cap.256] of 2007.

This article analyses how the monies generated for, and from, corporate financial crimes are controlled, concealed, and converted through the use of organisational structures in the form of otherwise legitimate corporate entities and arrangements that serve as vehicles for the management of illicit finances. Unlike the illicit markets and associated 'organised crime groups' and 'criminal enterprises' that are the normal focus of money laundering studies, corporate financial crimes involve ostensibly legitimate businesses operating within licit, transnational markets. Within these scenarios, we see corporations as primary offenders, as agents, and as facilitators of the administration of illicit finances. In all cases, organisational structures provide opportunities for managing illicit finances that individuals alone cannot access, but which require some element of third-party collaboration. In this article, we draw on data generated from our Partnership for Conflict, Crime, and Security Research (PaCCS)-funded project on the misuse of corporate structures and entities to manage illicit finances to make a methodological and substantive addition to the literature in this area. We analyse two cases from our research—corporate bribery in international business and corporate tax fraud—before discussing three main findings: (1) the ostensible legitimacy created through abuse of otherwise lawful business arrangements; (2) the effective anonymity and insulation afforded through such misuse; and (3) the necessity for facilitation by third-party professionals operating within a stratified market. The analysis improves our understanding of how and why business offenders misuse what are otherwise legitimate business structures, arrangements, and practices in their criminal enterprise.

Corruption in Nigeria is so notorious that data and statistics are no longer necessary to prove and establish that the proportion is endemic. Corruption, no doubts, has eaten deep into the fabrics of the Nigerian polity and system so much so that it has become convenient to offer justification for some kind public malfeasance in other to categorize them as a class of public misconduct outside corruption. Those who engage in the act of corruption now call it by different names in other to excuse themselves from the damning effect and opprobrium associated with corruption. Acts of stealing and embezzling public funds in Nigeria are now termed ‘stealing’ simpliciter, hence the ignoble coinage ‘stealing is not corruption.’ This has become convenient and common place in the public sphere because our laws failed to give a definite definition and make clear provision on the scope of the subject matter of corruption. This has compounded the confusion as to the scope of the offence of corruption in Nigeria, as the offence-creating statutes in their provisions on corruption, fail to cover and integrate as corruption various acts which are globally recognised as corruption. This paper is thus set out to critically examine the extent and a scope of the offence of corruption in Nigeria and to determine its true scope. The paper undertook the examination of relevant statutes touching on offences of corruption with a view to pointing out generally, the inadequacies of our laws in this regards and to clarify and identity certain class of corrupt practices that are not specifically provided for. The methodology is thematic, while the presentation approach is expository, analytical, critical and comparative. It undertook a discussion of the subject matter by way of critical analyse of relevant themes and examination and assessment on the relevant laws and opinions related to the subject matter.

Keywords: Amorphous, Corruption, Corrupt Practices, Crime, Offence.

"Structured Abstract
Purpose: Targeting criminal assets plays a key role in tackling crime, yet there is a notable absence of research on the operation and impact of this approach. This article calls for greater engagement between policymakers, practitioners and researchers to address this. Using experiences from Scotland, the article focuses on the use of civil recovery, and identifies a number of areas that are in need of further research.

Design/ methodology/ approach: This article is a collaborative effort by a member of the Scottish Civil Recovery Unit and an academic researcher. The aim was to stimulate debate on the use of civil recovery, its impact, and future research directions. It draws upon two case studies from Scotland to illustrate how civil recovery has operated in practice.

Findings: There are important distinctions between the civil recovery regime in Scotland and the regime that applies in other parts of the UK (eg the absence of ‘incentivisation’). There is a need to consider how the impact of civil recovery can be measured, and there is scope for future research in this area.
"

This article argues that the conceptualisation of private police in current academic literature requires expansion to accommodate the role of the regulated sector in the Anti- Money Laundering (AML) framework. Firstly, it evaluates the literature on ‘private police’ and argues that its current parameters are too narrow to accommodate the ‘policing’ role of the regulated sector. Secondly, it lays out the legislative framework that has developed to deal with the problem of money laundering. Thirdly, it contextualises the role of the regulated sector, examining the domestic inter-agency policing relationships within the suspicious activity regime as operationalised in Scotland. Finally, it takes a closer look at how the courts have interpreted the ‘failure to report offence’ under s330 of the Proceeds of Crime Act (POCA) 2002 and its consequential effect on the engagement of the regulated sector with the SARs regime.

Purpose: The purpose of this paper is to analyse those obligations to share information and deliver assistance which flow from the legislation intended to prevent the money laundering as contained in the Law 19/2003 of the 4 July, which transposes into Spanish law the provisions of Directive 2001/97/EC, which provisions set out the obligations of notaries, registrars, lawyers and court attorneys and their compatibility with their duties of professional privilege. Design/methodology/approach – The new law has provoked a debate centred in the compatibility of the obligations of disclosure with legal professional privilege and the rights of the defence. This issue is discussed in the paper. Findings – With regard to lawyers there arises a conflict between the duty to maintain client confidentiality and the obligations of disclosure in the prevention of money laundering which must be resolved in favour of the former, it being established in Spain by a law of superior status. This means that if a lawyer transfers the information concerning his suspicion he should therefore be punished as committing the crime of disclosure of confidential material. Research limitations/implications – Only Spanish literature is used. Practical implications – With respect to the lawyers, the carrying out of the obligations of disclosure imposed by the new Spanish Law 19/2003 breaches the duty of client confidentiality. For notaries, registers and court attorneys the problem does not exist. Originality/value – An overall view is offered of the difficult situation in which some legal professionals find themselves in light of the prevention of money laundering in Spain. Introduction The enormous possibilities offered by the current world financial structure has favoured the proliferation of a type of conduct which aims to introduce in lawful commerce the huge profits flowing from the commission of crime, that is to say that conduct which seeks to launder the money flowing not only from drug smuggling but also from every kind of criminal activity which is especially profitable. We find ourselves confronted by a problem of international impact in that, as a general rule, both the crimes from which the property flows and also the laundering activity itself are not confined to one single country but rather both extend beyond national borders. This fact has led the adoption of international initiatives, some with the goal of driving the harmonisation of the legislation of different states, others the coordination of the international effort to suppress laundering (Souto, 2002; Pérez, 2005) and the passing of legislative measures by those countries affected. The area of criminal law in the Spanish legal framework has not remained on the margin of this activity having introduced in the Penal Code of 1995 (hereinafter PC) the crime of the laundering of money proceeding from the commission of a crime:

Edited by: Colin King and Clive Walker

Adopting a multi-disciplinary and comparative approach, this book focuses on the emerging and innovative aspects of attempts to target the accumulated assets of those engaged in criminal and terrorist activity, organized crime and corruption. It examines the ‘follow-the-money’ approach and explores the nature of criminal, civil and regulatory responses used to attack the financial assets of those engaged in financial crime in order to deter and disrupt future criminal activity as well as terrorism networks. With contributions from leading international academics and practitioners in the fields of law, economics, financial management, criminology, sociology and political science, the book explores law and practice in countries with significant problems and experiences, revealing new insights into these dilemmas. It also discusses the impact of the ‘follow-the-money’ approach on human rights while also assessing effectiveness.

Kuwaiti law has long taken action against forms of ‘dirty money.’ This action is embodied in the legal responses provided by the Protection of Public Funds Act 1993, the Anti-Corruption Authority Act 2016, and the Anti-Money Laundering and Combating Finance of Terrorism Act 2013. These laws included interim and provisional measures that aimed to protect public funds from being disposed of or hidden (freezing and seizure orders), financial disclosure systems to expose any potential illicit enrichment, strict measures to prevent and detect money laundering activities, and asset recovery measures, including confiscation orders. The focus of this chapter will be on three Kuwaiti corruption offences: crimes against the public purse, the offence of illicit enrichment, and the offence of money laundering. Despite the legal responses, the development of legal tools that deal with the proceeds of such crimes does not match up to the problem of corruption. Both civil forfeiture and unexplained wealth orders are two innovative legal tools that are noticeably absent in Kuwait. It is argued that Kuwait’s failure to adopt these innovative approaches is due to two reasons: the nature of Kuwait’s characteristics as a nation state and the absence of external, sufficiently coercive pressures that might induce Kuwait to develop its laws.

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.

Key words:  Extended confiscation. – Proceeds of crime. – Innocent third parties. – Right of pursuit.....

Summary.... The author, in this paper, is looking for Ariadne’s thread, which would help us to find the way through the lеgal labyrinth composed of justified reaction of the state in the war against organized crime, from one side and what is considered an appropriate protection of secured creditors subjective rights, from the other side. He points out that in resolving a dilemma, does the mortgagee have the right to enforce its debt against the Republic of Serbia (right of pursuit), in case if the extended confiscation of property (proceeds of crime) includes subject-matter of mortgage, the court should take into account does the mortgagee know or should know about criminal origins of encumbered assets. The court should evaluate a good faith of the mortgagee, bearing in mind all the circumstances of the case, especially: 1) The moment of a mortgage establishment, i.e. whether the registration of mortgage is prior in time to the initiation of a property freezing procedure; 2) Overall business and other relations between mortgagee and mortgagor, i.e. are these parties associated in any other way? 3) Objective changes in the economic position of mortgagee and mortgagor, i.e. is the security agreement true or simulated, in particular, whether the value of the secured claim actually enhanced the property of the mortgagor and at what consideration.

This book examines the phenomenon of ‘grand corruption’ in Kuwait and the pattern in the wider region.

Taking an interdisciplinary approach, the work places corruption in its sociological, political and economic context to explore the relationship between the characteristics of Kuwait as a state with an endemic corruption problem. It then focuses on laws and regulations as key problem-solving mechanisms. In doing so, it identifies, explores and assesses the existing counter-corruption laws and regulations in Kuwait in a broad socio-political-economic context. The work goes beyond doctrinal legal research, employing empirical methodology based on semi-structured interviews with elite politicians and professional experts from criminal justice and NGOs. These valuable and original insights are reflected upon throughout the study.

The grand corruption that permeates the tier of high-profile officials in Kuwait is replicated in many developing countries where accountability mechanisms regularly suffer from lack of enforcement. The appeal of this book is its application to numerous jurisdictions, and the GCC countries and Middle East in particular. It will be a valuable resource for academics, researchers and policy-makers working in the areas of financial crime and corruption.