Asset Forfeiture (Civil)

Sometimes it is not possible to prosecute offenders, or where it is possible to obtain a conviction the confiscation system involved is inadequate and ineffective to ensure that the assets are forfeited, yet the assets are able to be identified. Consequently a response strategy has been developed that relies also upon civil and regulatory measures.

Although relatively few jurisdictions have a system of civil forfeiture there is now an increasing trend to introduce legislation to enable stand-alone civil proceedings to recover the proceeds of crime.  Examples of such States include Antigua and Barbuda, Australia, some Canadian Provinces, Ireland, Italy, Slovenia, South Africa, and the United Kingdom.

This trend towards civil forfeiture has been prompted by the tendency for organized criminals to use their resources to keep themselves distant from the crime and to hide the criminal origin of their assets. It has become extremely difficult to carry out successful criminal investigations leading to the prosecution and conviction of such individuals, with the result that the proceeds derived from crime are often effectively out of the reach of the law, and the criminals are able to enjoy their ill gotten gains in peace. This damages public confidence and provides harmful role models to impressionable citizens.

Civil forfeiture enables States to strip an offender of his assets via civil action against his property without the requirement of a criminal conviction. The State will still have to prove that the offender’s assets are either the proceeds of crime or represent property used to commit crime i.e. instrumentalities.

Advantages of civil asset forfeiture are that the standard of proof is the lesser civil standard, that unlawful actions can include non-criminal infractions and that a civil asset forfeiture law can be made retrospective to catch proceeds obtained prior to its commencement.