Hitting Them Where It Hurts: The history and development of Civil Recovery powers under the Proceeds of Crime Act (2002 - 2016).

Lead Research Organisation: University of Sussex
Department Name: Sch of Law, Politics and Sociology

Abstract

Civil recovery allows the State to confiscate assets even in the absence of criminal conviction. Thus, there are significant implications for the content and procedures of criminal law and evidence.

In January 2016, the Home Affairs Select Committee launched its Inquiry into the Proceeds of Crime Act. In November 2015, the National Security Strategy emphasised the importance of targeting criminal assets, promising to: 'introduce new measures to make the UK a more hostile place for those seeking to move, hide or use the proceeds of crime and corruption or to evade sanctions.' (p.42) Following critical assessment of post-conviction confiscation orders by both the National Audit Office (2013 & 2016) and the Public Accounts Committee (2014), it is unsurprising that there is now even greater attention on 'civil recovery' provisions under the Proceeds of Crime Act 2002 (POCA).

This research project will examine the history, policy issues, and legislative developments (ie the pre-POCA phase of research), and contrast these with post-POCA (2002-2016) developments, using documentary analysis and research interviews. These interviews will be conducted with key actors in the criminal justice system, offering new insights into the development of civil recovery, and the consequent impact on criminal law, evidence, and procedure. The issues to be explored in the research interviews have been identified, and refined, following a pilot study carried out between November 2015 and February 2016.

In tackling organised crime the tactic of 'following the money' is now a central feature of government policy , gaining a particularly strong foothold in the build up to the UK Proceeds of Crime Act 2002, subsequent legislative amendments, and judicial interpretation of the legal provisions. That focus on criminal finances continues unabated today (see above). Yet, policy is all too often inadequately informed by evidence-led research on historical development, policy issues, and legislative change (including judicial interpretations). Now is an ideal time to step back and reflect upon the development of civil recovery powers, and their impact on criminal law, evidence, and procedures - from the date of enactment up to the date of the Home Affairs Select Committee Inquiry (2002 - 2016).

This project will build upon the extensive work I have already conducted in this area, which has enabled me to identify key areas that require deeper examination. The specific focus of this project has been further refined in consultation with leading stakeholders, and I have established an excellent policy and practice focused Advisory Board, with representatives of:
- the National Crime Agency,
- the Home Office,
- Eurojust, and
- Royal United Services Institute (RUSI).

The main outputs from this project will be:
- a monograph entitled 'Civil Recovery of Criminal Assets' which is under contract with Oxford University Press;
- four peer-reviewed articles in leading journals;
- a series of presentations at academic and practitioner events;
- Executive Summaries produced in consultation with the project Advisory Board;
- an end of project, practitioner-focused, workshop;
- podcasts from the project workshop; and
- a conference to support emerging researchers in this field of study.
These outputs will be of benefit to a wide audience, from academic, policy, and practice backgrounds.

This project will build upon my previous research over the past decade. Whereas my previous research focused on a doctrinal analysis of proceeds of crime legislation, this project is driven by a new focus - combining documentary analysis and research interviews - exploring historical development, policy issues, and legislative responses (both pre-POCA and post-POCA (2002-2016)), drawing upon insights from key actors in the UK and delivering fresh perspectives on the controversial civil recovery powers.

Planned Impact

This research will be of interest to policymakers and practitioners working with the UK Proceeds of Crime legislation, as well as being of interest to others working with equivalent legislation in other jurisdictions. Relevant UK stakeholders include: the Home Office, the National Crime Agency, the Civil Recovery Unit, the Crown Prosecution Service, and the National Police Chiefs Council, to name but a few. Leading practitioners in private practice (who regularly work with the legislation) will also be interested in this research. The research will be especially relevant to legal, taxation, and accounting practitioners who regularly encounter difficulties with civil recovery powers under the Proceeds of Crime Act 2002.

Beyond the UK, key stakeholders include Eurojust, the Financial Action Task Force (FATF), the Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL), the Group of States Against Corruption (GRECO), the European Criminal Assets Bureau, and the Camden Asset Recovery Inter-Agency Network (CARIN). For each of these institutions, civil recovery is seen as a powerful tool and a transnational response to transnational organised crime.

This research will explore key issues that have been refined in consultation with the project Advisory Board, composed of representatives from the National Crime Agency, the Home Office, Eurojust, and Royal United Services Institute (RUSI).

By examining issues such as the types of crime alleged, the evidence used in applications for such orders, and the operation of safeguards, this research will contribute to a greater understanding of how civil recovery has developed (informed by the experiences of key practitioners) and how it has impacted upon criminal law, evidence, and procedures.

This research has the potential to:
- Influence public policies and legislation at a national and international level;
- Contribute to greater understanding of how civil recovery has developed at the coalface of the criminal justice system;
- Contribute towards evidence-based policy making, through the use of research Executive Summaries;
- Ensure that rights protections are situated at the heart of policy debates on proceeds of crime legislation;
- Develop balance in policies, law-making and implementation of asset recovery;
- Challenge (and ultimately improve) law enforcement practices and attitudes;
- Provide expert knowledge on proceeds of crime powers, which could be of interest to other jurisdictions interested in developing new legislation on civil recovery;
- Develop 'capacity-building' impact, through acquisition of new skills and insights, both for the PI and other researchers (eg those involved in the Early Career conference detailed in the 'Leadership' section).

The findings from this research will feed back into policy and practice: members of the Advisory Group have agreed to disseminate findings (eg via their intranet) and they will also take delivery of Executive Summaries arising from the research to feed back into the policymaking process. An end of project workshop and dissemination event will be held, with presentations from the PI and the Advisory Board to maximise dissemination and impact of the research findings.
 
Description Civil Recovery + DPA collaboration 
Organisation University of Manchester
Country United Kingdom 
Sector Academic/University 
PI Contribution Collaboration between Dr Colin King (Sussex) and Dr Nicholas Lord (Manchester) to co-author a book chapter and a book.
Collaborator Contribution Collaboration between Dr Colin King (Sussex) and Dr Nicholas Lord (Manchester) to co-author a book chapter and a book.
Impact Book chapter - currently in press. Book - currently in press.
Start Year 2017
 
Description NCB collaboration 
Organisation University of Leeds
Department School of Law
Country United Kingdom 
Sector Academic/University 
PI Contribution Collaboration with Dr Jen Hendry to develop legal theoretical research on civil recovery under the Proceeds of Crime Act.
Collaborator Contribution Legal theory insights.
Impact Article in International Journal of Law in Context. Article in Criminal Law & Philosophy. Co-authoered book currently in progress.
Start Year 2015