On Friday 9th May 2014, the All Souls Seminar Series hosted a lecture by Johan Boucht, postdoctoral researcher at the University of Bergen and visiting researcher at the Centre for Criminology, entitled ‘Extended Asset Recovery – Increased Functionality or Unjustified Deviation From Traditional Legal Safeguards’. Johan’s paper highlights the importance of constructing an appropriate legal framework for the implementation of extended asset recovery proceedings, a practice that has recently attracted increasing attention from policy makers.
Extended asset recovery has commonly been framed as a preventative strategy, rather than as a punitive one. They are specifically designed to target individuals conducting a criminal lifestyle and whose properties significantly exceed what could be reasonably expected given their socio-economic status. The extension of asset recovery measures in countries such as Finland, Sweden, Norway and the United Kingdom, has entailed deep transformations and raised a number of controversial issues. From systems based on a ‘simple confiscation’ criteria, which only targets the profits of a particular criminal offense, these countries have turned to systems based on an ‘unjust enrichment’ criteria, whose scope extends to all proceeds, allegedly derived from criminal activities, regardless of their connection with the charged offense.
This considerable extension has prompted strong reactions. A number of scholars have expressed concerns about the risk that the new measures might undermine the integrity of traditional criminal justice values and procedural safeguards. Critics have argued against the draconian nature of the provisions, their failure to abide with due process requirements, and the excessive scope of the enforced confiscations.
In light of the above considerations, Johan argues that in order to keep them in line with their original preventative purpose, asset forfeiture measures need to be limited. He proposes a balancing model aimed at evaluating the need to respect the rights of the defendant on the one hand, and the necessity to create an efficient system that targets the profits of big criminal enterprises on the other. According to his analysis, three main parameters need to be weighed in this balancing effort.
First, one needs to consider the target area of the measures. On the one hand, one could narrow the criteria by targeting only specific categories of offenders, such as repeated offenders and members of criminal organisations, and/or particularly serious offenses. On the other hand, one could broaden its scope to include the properties of third parties, given offenders’ established practice of transferring their illegal profits to family members, friends and colleagues, when they realize that the origins of their income is under police investigation. Secondly, one needs to evaluate whether the procedural safeguards put in place meet traditional due process requirements. Assessments of the legitimacy of the measures’ standard of proof, of the extent to which they respect defendants’ right to remain silent, and of their respect of double jeopardy protections, are particularly crucial. Finally, one needs to evaluate whether the magnitude of the confiscated property respects reasonable proportionality requirements, especially given the non-punitive purpose of the measures.
A closer analysis of these parameters shows the inherent complexity of any evaluation attempting to define the extent to which asset recovery measures can be legitimately expanded without violating traditional legal safeguards. Its complexity mainly derives from its positioning within a preventative rather than punitive framework, a space where traditional rationales fail to justify its extensive implementation. In this context, legitimate attempts to target illicit profits, whose origins are difficult to trace back and prove, clash with the need to respect the rights of the defendant. The lack of clear empirical evidence on the quantity of dirty money circulating, and on the extent to which criminal organizations have extended their activities in different European countries, further complicates the landscape. Johan’s on going research aims at shedding light on this complexity. In the meantime, we are left with some open, still unsolved, questions for our reflection: do we really need extended asset recovery provisions to control crime? Assuming that this is the case, is it possible to develop a common European model for their implementation?